text:
    The People, Resp’ts, v. James M. Wood, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Board on health—Power to suppress nuisances..
    Laws of 1885, chap. 270, § 3, subd. 4, conferring power on boards of' health to suppress nuisances, contemplates notice to the person complained of in order that he may be heard.
    2. Same—Bight on owner of premises to be heard.
    Where a board of health of a city served a notice upon an alleged owner of premises, determining him to be owner and requiring Mm forthwith to abate a nuisance, the alleged owner having had no notice, and thereafter he was arrested and convicted, Held, that the alleged owner had been deprived of a substantial right, and that said conviction was void.
    Appeal from a judgment of the court of sessions of Fulton county, affirming a conviction of the appellant and judgment thereon rendered in the recorder’s court of the city of Grloversville for failing to abate a nuisance as required by an order of the-board of health of that city.

      N. H. Anibal, for app’lt; William Green, for resp’ts.
   Mayham, J.

The board of health of Grloversville made an. order of which the following is a copy:

“ To J. M. Wood : .

“ You will please take notice that upon examination it has been found that a nuisance and source of danger to life and health exists upon the premises described, on Church street, occupied by Mrs. Lent and Mrs. Hotaling and owned by you, which nuisance and source of danger consists of a privy which needs cleaning. And you are required forthwith to remove and suppress-such nuisance and source of danger and cause said premises to be thoroughly cleansed.

“ In default thereof you will be liable to a penalty of $25 and for a wilful violation of the regulations of the board you will be guilty of a misdemeanor and liable to a fine not exceeding $1,000 or imprisonment not exceeding sixty days, or both such fine and imprisonment.

“ Ordered by the Board,

“ A. Simmons, President.”

The case discloses that this order was served on the defendant on the 19th day of July, 1890, but that the defendant had no notice of the meeting of the board of health at which the order was made. On the 22d day of July, 1890, the clerk of the board of health made an information in writing and under oath reciting the above action of the board of health and that the defendant, wilfully violated and disobeyed such order, and prayed for a warrant to apprehend the defendant and presented such information: to the recorder of the city of of Gloversville, who issued his warrant under which the defendant was arrested and brought before the recorder.

On being brought before the recorder the complaint was read to the defendant, who pleaded not guilty, and on motion of the complainant the case was adjourned.

On the adjourned day the People appeared by an attorney and the defendant in person, and the prosecution put in evidence the order of the board of health above set out, and proof of service of the same on the defendant; also proof tending to show that the tenants in possession of the premises on which the alleged nuisance existed rented the same of the defendant; also proof by a member of the board of health that he had examined the premises, and that the alleged nuisance had been removed before the time of issuing of the warrant.

The defendant testified in his own behalf, in substance, that he-was not the owner of the premises on which the alleged nuisance existed, and was not the agent of the owner of the same ; that the premises belonged to Joseph E. Wood, but that after the order of the board of health had been served on him he made an effort to procure some person to clean the premises.

The recorder found the defendant guilty, and made the following order: “ Ordered, that the defendant is guilty, and that he pay a fine of $40, and in default of payment to be imprisoned until paid, not exceeding forty days, in Fulton county jail.” And thereupon the recorder entered judgment of conviction in accordance with that order. From that judgment the defendant appealed to the court of sessions of Fulton county, where the conviction was affirmed, and the defendant appeals to this court.

The principal question urged on this appeal as a ground for the reversal of the judgment of the court of sessions affirming the conviction by the. recorder, is that no notice of the meeting of the board of health to pass upon the existence of this alleged nuisance, or the liability of the defendant for its existence, or for the removal or abatement of the same, was given to the defendant, and that the order of the board of health affected a substantial right of the defendant, and that the board had no jurisdiction to bind him by such an order without notice.

Enough is disclosed in the record to show that the board acted without notice to the defendant, and that the defendant had no notice of the action of the board until after the order hereinbefore recited was made.

But it is insisted on the part of the respondent that the board of health has power to proceed ex parte and without notice to determine the existance of a nuisance and order it abated and that a refusal or neglet of the person to obey that order, after its service upon him, is such a wilful refusal as to make him guilty of a misdemeanor within the provisions of § 4 of chapter 270 of the Laws of 1885. Subdivision 4 of § 8 of this act authorizes the board of health to receive and examine into the nature of complaints made-by any of the inhabitants concerning nuisances, and shall furnish the owners, agents or occupants a written statement of the result or conclusion of such examination, and it shall be its duty to order the suppression and removal of nuisances and conditions detrimental to life or health found to exist within the limits of its jurisdiction. Subdivision 6 of said section provides, among other things, that such board may make “without publication, such orders and regulations, in special or individual cases, not of general application, as they may see fit concerning the suppression or removal of nuisances * * * and serve copies thereof upon any occupant or occupants, owner or owners, of any premises whereon any nuisance or other matter aforesaid shall exist, or to post the same in some conspicuous place on such premises.”

Section 4 of the act of 1885 provided that, “ Every person who shall wilfully violate or refuse to obey any order or regulation made and published by the board of health of any city, village or town in this state; or any order made and served, or posted as aforesaid, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to fine or imprisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars nor such imprisonment six months.”

The order of the board of health in the case under consideration assumed to determine that the defendant was the owner of the premises, and that as such owner he permitted the existence of a nuisance on the same, detrimental to the public health, and upon that assumption commanded him to abate the same or in default thereof to be subject himself to heavy pecuniary forfeiture and a criminal prosecution involving his personal liberty.

It is quite apparent that important property and personal rights were involved in this determination by the board of health, and it has been held that such determination is of quasi judicial character. People ex rel. The N. Y. C. & H. R. R. R. Co. v. The Board of Health of Seneca Falls, 58 Hun, 595 ; 35 St. Rep., 411.

Can such judicial investigation and determination be properly conducted without notice to the person whose property and liberty is put in jeopardy by it?

We think not In People ex rel. R. R. Co. v. Seneca Falls, 58 Hun, 599; 35 St. Rep., 411, the court says: “ Though no special provision is made in the act for notice to the offending party, yet the power given to the board by subdivision 4 of § 3, ‘to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances,’ etc., requires by necessary implication the board to give a reasonable notice to the person against whom the maintenance of the nuisance is alleged that complaint has been made or that such fact exists so that he may be heard in his own behalf and, if possible, to refute the charge made against him. Ho proper inquiry leading, to a final order-affecting private rights can be made without hearing both sides.”

In this case the board assumed to make a final order determining the existence of the nuisance, the ownership of the premises on which it existed, and the liability of the defendant to remove the same.

This order formed the basis of the criminal action against the defendant and the only question remaining for the recorder’s court to determine was whether the order had been wilfully disobeyed by the defendant.-

The recorder’s "court was not an appellate court to review the-action of the board, and it may be doubted whether the order could have been attacked collaterally in the trial court. It would seem to follow that the act of the board of health in making this final order against the defendant ex parte and without notice to-him was without jurisdiction and void.

But it is urged that such a determination will paralyze the efficiency of the board of health and expose the public to the ravages of pestilence without ability on the part of these officers to remove the cause.

But the board of health may, of its own motion, and at the expense of the party maintaining it, abate a public nuisance, being of course accountable to the party injured for an abuse of that power.

Section 4 of the act above referred to provides that “ in any case of non-compliance with any order or regulation which shall have-been served or posted as provided in subdivision 6 of § 3 of this act, the said board or its servants or employes may lawfully enter upon any premises to which such order or regulation relates, and suppress or remove the nuisance, or other matters, in the judgment of said board, detrimental to the public health, mentioned in said order or regulation, and any other nuisance or matter of the description aforesaid found there existing.”

The section further provides that the expense incurred by the board for such removal shall be chargeable upon the occupant or occupants, or the person causing or creating such nuisance, and may be sued for and recovered with the cost of prosecuting the action in the name of the board of health.

Thus the delay and danger to the public health may be obviated by the action of the board itself. Weil v. Schultz, 33 How., 7; Rogers v. Barker, 31 Barb., 447. But from these cases it seems that this power should be exercised only in extreme cases, and then only when a party charged has had an opportunity to be-heard, and fails to show cause why the nuisance should not be abated.

It would seem to follow that the action of the board of health in the case under consideration, without notice to the defendant, was unauthorized and furnished no basis for the criminal proceedings instituted against him, and that his convictioti by the recorder based upon the order made by the board without notice to-the defendant was erroneous, as was the judgment of the court of sessions affirming such conviction, and that the judgment of the court of sessions, and that of the recorder, should be reversed.

Judgment reversed.

Learned, P. J., and Lardon, J., concur.


source: Caselaw Access Project

author: Landon, J.

license: Public Domain

text:
    John Reed, Resp’t, v. George McConnell, Survivor, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Statute of frauds—Void contract—Implied assumpsit.
    The facts stated in complaint were equally adapted to a recovery upon an implied assumpsit or upon a contract for damages. Said complaint alleged an agreement to make the plaintiff a partner in a tannery business, part performance, expenditures made in said business and failure to keep said agreement. Upon the trial it appeared that the "oral agreement contemplated a partnership for a term of twelve years. Thereupon the defendant orally objected that as the contract was not in writing and by its terms could not be performed in a year, it was void by the statute of frauds. Held, that it was not error to allow the plaintiff to recover upon an implied assumpsit for what he had contributed to the business.
    2. Contract—Torn option—Not a contribution to firm assets.
    It appeared that one item of recovery arose as follows: The plaintiff had an option from a third person not in writirg, to buy 50,000 cords of bark at fifty cents a cord. ' The defendant firm took over this option, and as alleged made a large profit by it. Held, that as said contract was void, and as plaintiff: never had any legal right in it to transfer and did not show that he was either able or willing to go on with the contract if the defendant firm had not, it could not be deemed a contribution to the firm assets, and it was error to allow plaintiff for said profit upon said contract.
    Appeal by the defendantfrom a judgment for the plaintiff for $24,002.68 entered in Warren county upon the decision of the special term upon the trial without a jury.
    The complaint seeks a recovery:

      First. For the services and expenditures of the plaintiff in building a tannery for defendant’s firm at Oregon, Warren county.

      Second. For damages sustained by the plaintiff because of the breach by the defendants of an oral agreement to take the plaintiff into the tannery business upon the completion of said tannery, in the erection of which the services and expenditures mentioned in the first count of the complaint were rendered and made.
    The answer admits that plaintiff did render services for defendants in the construction of the tannery, but denies they were of the value claimed by plaintiff, and sets forth the contract in terms different from those alleged by the plaintiff, and alleges that plaintiff voluntarily left defendants’ employment, and also sets up a counterclaim to which plaintiff replied.
    The trial court found that the oral contract was made substantially as claimed by the plaintiff, that it was to continue twelve years, that after part performance defendants refused to perform and discharged plaintiff, that plaintiff rendered services and expended moneys in and about the erection of the tannery to the amount of $3,388.73 and that plaintiff made a contribution to the tannery enterprise as follows : He allowed the defendants to enter into and take the benefit of a contract with one Griffin for the purchase of 50,000 cords of bark at fifty cents per cord, which he had orally negotiated with Griffin in his own name, that said bark was really worth seventy-five cents per cord, making $12,500 more than defendants paid for it. The court established counterclaims against the plaintiff to the amount of $6,603.68.
    Upon the trial the defendants took the objection that the contract between the parties was void by the statute of frauds, and the trial court, though not expressly so finding, assumed it to be so, and held that plaintiff having performed his contract with defendants for building the tannery and running the same, until they without just cause turned him away and refused to carry out their contract with him, he being ready and willing to continue p erf ormanee, is entitled to recover the sum contributed by him towards buying the site ($100), also the value of said bark contract and interest thereon since it was made (namely $12,500 and interest), and for his services and expenditures in money and materials ($8,288.73), from which should be deducted the amount of the •counterclaims ($6,603.68). These items, reckoning interest, made .a balance in plaintiff’s favor of $21,843.13 for which judgment was directed with costs. Other facts are stated in the opinion.

      Francis A. Smith, for app’lt; E. T. Brackett, for resp’t
   Landon, J.

The complaint seeks a recovery for services and -expenditures rendered and made by plaintiff while he was permitted by defendants’ firm to continue in performance of an oral •contract made with them, and also for damages because they prematurely discharged him, and would not allow him to continue performance. The plaintiff introduced his evidence and rested, •and then the defendant objected that the contract was void by the statute of frauds, being neither in writing nor by its terms performable within a year. The court apparently held that the contract was void by the statute of frauds, and because void, that the plaintiff was, under the complaint, entitled to recover the amount of his contribution, in services, money and property, to the tannery enterprise, which was the subject matter of the oral contract

The defendant’s position is that the plaintiff must recover, it it all, upon the causes of action set forth in the complaint; that is, first, under the contract, and second, for its subsequent breach; •that the plaintiff’s evidence disproves the contract counted upon and takes away the basis of recovery. That the recovery allowed "by the court is upon the basis of the invalidity of the contract set forth; that is, upon no contract; certainly not upon the contract set forth in the complaint If it was proper to amend the complaint so as to conform it to the theory upon which the recovery was allowed, then the objection is not well taken. The question is not free from difficulty, but we are inclined to think that the amendment suggested might have been made. The evidence was as applicable to one theory of recovery as the other; and the true "test, we apprehend, is whether the amendment introduces a new .subject matter of recovery, or whether, with or without additional collateral facts, it is simply a new characterization of the old. Here, the plaintiff, in framing his complaint, was not mistaken as to his facts, but simply as to his rights under them; nor could he know until the defendant interposed the objection of the statute •of frauds that it would be taken ; and if it had not been taken the court would have been bound to uphold the validity of the oral contract, since it was competent (neither good morals nor public policy being violated) for the defendant to waive by his silence the statute of frauds.

We pass now to consider the question whether the allowance to the plaintiff of the estimated profits of the bark contract was proper.

The plaintiff was a practical tanner, owning and operating a. tannery at ¡North Creek, Warren county, and holding contracts-with McConnell & Gardner of Boston, Mass., who were partners- and dealers in hides and leather, and in procuring hides to be-tanned into leather, of which firm defendant McConnell is the survivor, Gardner having died since the commencement of this-action. Prior to March, 1877, the plaintiff proposed to McConnell & Gardner that they should build and operate a tannery at-Oregon in said county, about twelve miles from plaintiff’s tannery ; they to furnish the funds and he to superintend and manage the enterprise. The plaintiff pointed out to them the advantages of a particular site which he designated, among which was the abundance of bark near the proposed site upon land which one-Griffin was about to purchase at foreclosure sale. Plaintiff had opened negotiations with Griffin for the purchase of the bark upon this land to the amount' of 50,000 cords, at fifty cents a. cord, in case Griffin should complete the purchase. Griffin did orally agree with plaintiff that he would sell him the bark at fifty cents a cord when he should acquire title to the land. It is not. claimed that this was a valid contract under the statute. The plaintiff also obtained from one Van Dusen a contract allowing him to purchase within a limited time the site for the proposed tannery for $8,000, being a tract of 400 acres of land. Plaintiff' paid $100 upon this contract, to be" allowed upon the purchase-money if the land should be purchased, and to be forfeited if not purchased. McConnell & Gardner, in May, 1877, concluded to-embark in the enterprise, and then entered into an oral agreement with the plaintiff, whereby they agreed to furnish the money for the purchase of said bark and site, and for the erection and proper equipment of a tannery on said site, the plaintiff to cause-the title to the site to be procured in their names and the said bark at said price to be purchased of Griffin also in their names, the plaintiff to superintend the erection and equipment of the-tannery. McConnell & Gardner upon the completion of the tannery were to stock it with hides for tanning, all of said bark to be-used for such purpose, the plaintiff to superintend the business-- and be paid $1,000 per year from the commencement and during the period necessary to consume said bark, which was estimated at twelve years, and also after computing the expenses and receipts upon a plan agreed upon, the plaintiff was to be paid, in addition, one-third of the net profits.

In pursuance of such agreement the site was purchased, and the contract for the purchase of the said bark by McConnell & Gardner was made by them with Griffin in writing, plaintiff assisting in the negotiations, and the firm furnishing the money for both bark and site. The plaintiff proceeded with the erection of the tannery, the firm furnishing him large sums of money for the purpose. The plaintiff rendered services in this employment/ from May, 1877, until October, 1878, when the firm, without just cause, discharged him. Upon these facts, and upon defendant’s-objection, sustained by the trial court, that the contract was void-by the statute of frauds, plaintiff was entitled to recover, not under the contract, but as upon an implied assumpsit for whatever services, money or property he had furnished the firm. Day v. N. Y. C. R. R. Co., 51 N. Y., 583. The contract has no value as such, but is evidence of a request for the services, money and property supplied by plaintiff.

Griffin did obtain title to the bark land, and was ready and willing to sell the bark to plaintiff at fifty cents a cord. Whether, independent of the tannery enterprise, plaintiff was ready, able and willing to purchase the bark for himself is not directly found by the trial court. His own testimony and his letters lead us to think that he made his negotiation for it as an inducement to McConnell & Gardner to engage in the tannery enterprise, and if they had not-so engaged, plaintiff would not have bought the ■bark. He testifies that Griffin told him he would sell the bark for fifty cents “ to start a tannery there.” That McConnell told him to “close the contract with Griffin for the bark if you can; make arrangements to go ahead and build when you are sure you -can get the bark.” The large supply of bark and its cheapness were the principal advantages of the location at Oregon. Plaintiff, in a letter to McConnell & Gardner, dated April 6, 1877, writes: “ There is 200,000 cords of bark in that location that must come to the two tanneries.” The plaintiff did not testify that he would have bought the bark if his negotiations with McConnell ■& Gardner had fallen through. He does testify that in September, 1877, in a conversation with Gardner, in which he objected to leaving the employment of the firm, he said to Gardner: When I first talked of buying this bark, I intended it for the Horth Creek tannery (plaintiff’s). I afterwards concluded it would be better to build a tannery at Oregon."’ This subsequent declaration of his earlier intention may not be the best evidence -of it; but if we accept it, it shows that the intention was transient and was soon replaced by a different one.

The finding of the trial court that Griffin would have sold the bark to the plaintiff and not to the firm, except with the consent -of the plaintiff, falls short of a finding that plaintiff would have bought the bark if the firm had not. The evidence would not justify the latter finding. When, therefore, McConnell & Gardner agreed with him upon the erection of the new tannery and for the purchase of the bark, for which plaintiff had obtained an oral •refusal of Griffin, and McConnell & Gardner, with the consent and assistance of plaintiff, purchased the bark, it seems clear that the plaintiff did not either transfer or contribute to them any tangible property of his own, or any valuable right existing in himself to acquire it. The plaintiff had not converted his opportunity to acquire property into property. He, in effect, said to McConnell & Gardner: “ I think, indeed, Í am sure I can buy this bark for fifty cents a cord, but if you will go into this enterprise I will let you buy it, and will assist you in doing so.” Plaintiff cites Benton v. Pratt, 2 Wend., 385. In that case a firm of hog buyers had -orally agreed with plaintiff to buy of him 200 hogs at the market price, provided he delivered them within two weeks. By the .statute of frauds this agreement was void. The plaintiff procured the hogs and was driving them along the highway to the place of delivery. When seventy miles distant from said place defendant with a little drove of hogs passed him on the road, and learning from plaintiff his arrangement for the sale of his hogs, hastened along to the same place. The hog buyers there told defendant that they could not buy of him on account of their contract with plaintiff. Defendant told them plaintiff was not coming, but was going elsewhere with his drove. The hog buyers were thereby induced to buy defendant’s hogs, and being thus supplied refused to purchase of plaintiff when he arrived with his hogs. Had they known he was coming they would not have purchased of defendant and would have purchased of plaintiff. Plaintiff recovered of defendant the damages he sustained in consequence of the deceit practiced by defendant Rice v. Manley, 66 N. Y., 82, was also a case of deceit causing damage, and the recovery was placed upon that ground. In the present case, McConnell & Gardner practiced no fraud or deceit They refused to perform a void agreement, not amounting to a contract, which imposed no legal obligation of performance. Dung v. Parker, 52 N. Y., 494, Levy v. Brush, 45 id., 589. Moreover, it does not distinctly appear here that the plaintiff would have secured 'any advantage from his option to buy the bark if he had not given McConnell & Gardner the benefit of it.

Plaintiff’s contribution to the tannery enterprise, aside from money and materials, as found by the court, were his skill, services, activity, knowledge of local conditions and opportunities to-make this bark and other contracts advantageous to his employers,, whom, when he entered their service as their agent and superintendent, he undertook to serve faithfully in those respects. He-contributed no bark, nor profits .in a bark-contract, for he had neither; nor is it clear that he was induced by any act of his employers to forego any advantage otherwise certain to result to himself in respect to the bark. In measuring his recovery his-actual contribution to the tannery enterprise should be allowed at its actual value, but not the profits of a contract which plaintiff negotiated for the defendant’s firm, and not for himself.

The defendant urges that there are some errors in the items of the other allowances; if so, they can be readily corrected upom another trial.

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

Learned, P. J., and Mayham, J., concur.


text:
    Patrick Johnson, Appl’t, v. The Village of Glens Falls, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Negligence—lev sidewalk—New ice.
    For many days prior to and at the time of an accident snow and ice had" remained upon a village sidewalk. This had become rounded at the center of the walk. Upon the night before the accident snow and sleet fell,. and soon froze. The plaintifE, walking carefully upon said walk upon the next afternoon, fell and was injured. Held, that as he fell because of the new ice the village was not liable, even though the old ice; might have contributed to the result.

      Appeal from a judgment of nonsuit and for costs in favor of the defendant, directed by the court upon the trial before a jury at the Warren circuit September, 1889.

      J. S. L’Amoreaux, for app’lt; R. L. Hand, for resp’t.
   Landon, J.

On the afternoon of January 17,1884, the plaintiff, while carefully walking on an icy sidewalk on the west side of Church street in the village of Glens Falls, slipped because of the icy condition of the walk, fell, and was injured. For many days prior to January 17th, and up to that day, ice and snow having accumulated upon the sidewalk, were suffered to remain there, and had become rounded and ridgy along the center of the walk. On the night of the 16th of January snow and sleet fell to the depth of from two to four inches and then froze, covering this street and all the others in the village with a hard crust of ice. None of this ice had been removed from the sidewalk where plaintiff fell. The case then stands thus: The plaintiff fell on the fresh ice, as to which the defendant was not chargeable with negligence. Whether the old snow and ice, as to which the defendant might have been charged with negligenpe, contributed to his fall, the jury did not know and were not at liberty to guess. Taylor v. City of Yonkers, 105 N. Y., 202 ; 7 St. Rep., 332, requires an affirmance.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Mayham, J. Landon, J.

text:
    Matthew Barker, App’lt, v. The Town of Oswegatchie, George E. Morris et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Towns—Bridges—Power op board op supervisors to authorize raising OP MONET POR.
    A board of supervisors may act on a question of authorizing a town to borrow money to erect a bridge either, when the town by a vote of a majority of the voters at a general or special town meeting directs it, or when the supervisor of the town with the consent of the other town officers mentioned in the act of 1875 applies for that purpose.
    2. Same.
    The statute does not in terms require the consent of all the justices of the town.
    3. Same—Injunction.
    An injunction restraining action by the town officers under a void resolution of the board of supervisors does not prevent a proper application by the supervisor to the board.
    (Landon, J., dissents.)
    Appeal from an order made at St Lawrence special term, setting aside an injunction pendente lite granted by a justice of this court
    The action is prosecuted in the name of a taxpayer of the town of Oswegatchie in St. Lawrence county to restrain the town, its supervisor, and board of town auditors and commissioner of highways, also the board of supervisors of St. Lawrence county, and certain commissioners appointed by such board from further action under a bill or resolution of the board of supervisors of St. Lawrence county passed May 15, 1891, and from taking any action or proceeding in disregard of the contract of the Berlin Iron Bridge Go. with Joseph E. Wagner, sole commissioner of highways of the town of Oswegatchie, for the construction of a bridge at Eel Weirrajrids in such town.
    On the complaint and affidavits a temporary injunction was obtained ex parte before a judge, which was vacated on a motion; on notice founded on the answer and affidavits, in behalf of the defendants, at special term and from the order of the special term the plaintiff appeals.

      A. D. Wales, for app’lt; Daniel Magone, for resp’ts.
   Mayham, J.

The injunction order vacated at the special term and from the order vacating which this appeal is brought first enjoined the defendants from acting under the bill passed by the supervisors of St. Lawrence county on the 15th day of May, 1891, in relation to the construction of the Eel Weir rapids bridge, and. also enjoined any interference with the contract made for the construction of such bridge between the Berlin Iron Bridge Co. and Wagner as commissioner of highways.

The principal grounds indicated in the plaintiff's complaint and affidavits used in support of the injunction in this action are: First That the act of the board of supervisors in relation to the construction, passed May 15, 1891, was illegal, unauthorized, and void, and furnishes no valid authority to the town or the commissioners appointed in such act to construct such bridge, or incur any expense in relation thereto.

Second. That the bill or act of said board of supervisors is invalid, on the ground that it is a part of an illegal conspiracy to drain Black lake by dredging out the Oswegatchie river at Eel Weir rapids, with the money appropriated for the construction of the bridge.

The contract, the performance of which is sought to be restrained and which was enjoined by the temporary injunction, was entered into and under the provisions of the act of the board of supervisors passed May 15, 1891, which purports to have been enacted pursuant to an application of the supervisor of the town of Oswegatchie, with the- consent of the commissioner of highways, the town clerk, and three of the justices of the peace of that town. The application of such officers is set out in the complaint, and as follows:

" To the Board of Supervisors of the county of St. Lawrence and State of New York:

“I, George W. Hurlbut, supervisor of the town of Oswegatchie, by and with the consent of Alexander Mayne, sole commissioner of highways of said town, and of Nathaniel Wells, town clerk of said town, and the consent of several justices of the peace of the town of Oswegatchie, which consents are hereto attached and made a part of this application, hereby applies to your Hon. Board for authority to borrow upon the credit of the town a sum not to exceed $10,000, at a rate of interest not exceeding four per cent per annum, and for authority to execute and issue the bonds of said town therefor, for the purpose of rebuilding the bridge across the Oswegatchie river at the Bel Weir rapids in said town; and also for the appointment of five commissioners for said town to construct said bridge.

“G. W. Hurlbut,

“ Dated May 2,1891.

“We, Alexander Mayne, sole commissioner of highways of the town of Oswegatchie, and Nathaniel Wells, town clerk of said town, and the several justices of the peace of Oswegatchie, do hereby consent to the foregoing application and most respecfully request your Hon. Board to grant the same.

“A. Mayfte,

Sole Commissioner of Highways.

N. Wells, Town Clerk.

“ Dak S. Giffin,

“ James A. Mack,

“Abel Colmaft,

Justices of the Peace. ”

“ To the Board of Supervisors of the County of St. Lawrence and State of New York :

I, Gr.W. Hurlbut, supervisor of the town of Oswegatchie, by and with the consent of Alexander Mayne, sole commissioner of highways of said town, and of Nathaniel Wells, town clerk of said town, and the consents of the several justices of: the peace of the town of Oswegatchie, which consents are hereto attached and made a part of this application, hereby applies to your Hon. Board for authority to borrow upon the credit of the town a sum not to exceed $10,000, at a rate of interest not exceeding four per cent, per annum, and for authority to execute and issue the bonds of said town therefor, for the purpose of rebuilding the bridge across the Oswegatchie river at Eel Weir rapids in said town, and also for the appointment of five commissioners for said town to construct said bridge.

“Dated May 2, 1891.

“G. W. Hurlbut, Supervisor

“I, George E. Morris, one of the justices of the peace of the town of Oswegatchie, N. Y., hereby consent to the foregoing and annexed application.

“George E. Morris,

Justice of the Peace.”

The first section of the act of the board of supervisors authorized the supervisor of the town of Oswegatchie to borrow on the credit of the town a sum not exceeding $10,000, and to execute bonds of the town therefor, and prescribes the denominations, times of payment, and rate of interest of such bonds and directs the levying and collection of the amounts of principal and interest, at the dates at which such bonds mature, from the taxable property of the town.

The second section prescribes the form of such bonds and the manner of their execution, directs their sale at not less than par value and the application of so much as shall be necessary for the construction of a bridge across the Bel Weir rapids.

The third section requires the supervisor of the town of Oswegatchie to execute bonds in the sum of $20,000 with sureties specified therein, to be approved by the board of town auditors, for the faithful performance of his duties under this act.

■ The fourth section of the act appoints five commissioners by name from the town to construct such bridge, and defines and prescribes their powers and duties.

The fifth section provides that the act shall take effect imme-' diately. On the 20th of May, 1891, the commissioners appointed under this act met and by resolution appointed William J. Averill, one of their number, chairman, and Daniel Magone, another member of the commission, secretary, and at the same meeting, by resolution, directed their secretary to ascertain in what time and upon what terms such bridge could be constructed and to open correspondence with builders for that purpose. On the 22d of May, 1891, at an adjourned meeting of such commissioners the “ King Iron Bridge & Manufacturing Go.” submitted a proposition to such commissioners in writing to construct such new bridge for $5,670, which proposition was, at a meeting of such commissioners, accepted by them, by resolution, on the 26th day of May, 1891. And the supervisor of the town was by a resolution of such commissioners directed to sign a contract with the King Iron Bridge Co. for the construction of the bridge, and a resolution was also passed directing the chairman to draw his order on the supervisor, payable to the King Iron Bridge Go., for $2,835 pursuant to the contract.

The affidavits disclose that pursuant to this contract the King Iron Bridge Co. had commenced work under this contract at the time the temporary injunction was granted and served.

Prior to the adoption of the amendment of article 3 of the state constitution, the power to pledge the credit of a town beyond a prescribed small limit was vested in the legislature. By the amendment of that article the legislature was authorized by general laws to confer upon the boards of supervisors of the several counties such further powers of local legislature and administration as the legislature may from time to time deem expedient. And the same amendment of the constitution divested the legislature of the power of passing private or local bills. People ex rel. Morrell v. The Board of Supervisors, 21 St. Rep., 770.

Under that authority the legislature passed chapter 482 of the Laws of 1875. By subd. 29 of § 1 of that act towns were authorized to issue bonds and borrow money for any purpose mentioned in subds. 6, 7, 20 and 23 of that act, upon the authority of an act of the board of supervisors. Subd. 6 of that act empowered the board of supervisors upon a vote of the majority of the electors voting at a town meeting to authorize a town to borrow money for the erection, repair and maintenance, in whole or in part of any bridge for the erection of which such town is liable; or upon the application of the supervisor by and with the consent of the commissioner of highways, town clerk, and justices of the peace of such town.

Under this statutory power we do not see why the supervisors might not lawfully do what they did in this case.

They may act upon a question of this character either when the town by a vote of the majority of the voters at a general or special town meeting direct it, or when the supervisor of a town, with the consent of the other town officers mentioned in the act of 1875 above referred to, applies for that purpose. This ppwer was transferred to them by the provisions of subdivision 6 of § 1 of that, act, under the provisions of § 23 of article 3 of the constitution as amended by the vote of the people in 1874, if there was any doubt of its existence before that amendment; but in the case of the People v. Meach, 14 Abb., N. S., 429, decided at special term in 1890, it was held that that power existed under the provisions of § 2 of chapter 855, Laws of 1869, and that in a proper case the board of supervisors might appoint commissioners to erect a bridge, and in that case dissolved a temporary injunction restraining the acts of the commissioners; and in the Town of Kirkwood v. Newburg, 12 St. Rep., 420, the court held that the board of supervisors on the application of a town under the provisions of subdivision 6 of § 1 of chapter 482 of the Laws of 1875, as amended by chapter 257 of the Laws of 1876 and chapter 451 of the Laws of 1885, might legally enact a law requiring two towns legally liable to maintain a bridge to each raise money to pay its share of the expense by an issue of bonds by each.

In Berlin Iron Bridge Co. v. Wagner, 32 St. Rep., 407, it was held that the special town meeting was called under the provisions of the Revised Statutes as amended by chapter 259 of the Laws of 1886, and that the town meeting under the call could not vote upon it legally, or if it should be held that it was a vote on the question of raising money or incurring any town liability, it should have been by ballot, and in either case it furnished no legal basis for the action of the supervisors. In that case there was no application to the board of supervisors by the supervisor with the consent of the commissioner of highways and other officers of the town, as required by statute. Here all the provisions of the statute authorizing a supervisor to apply seem to have been complied with, unless the absence of one of the four justices of the peace of that town renders the application defective, which we cannot hold for the purpose of reversing this order.

The statute does not in terms require the consent of all of the justices of the town. The language is: The justices of the peace of said town.” We are therefore inclined to the opinion that the act of the board of supervisors is in ho respect so defective, technically, as to render it invalid. Whether Morris or Felter is legally entitled to the office of justice of the peace, it seems that Morris is such justice de facto, and that Felter, although he believes himself to have been duly elected, has not received any certificate, and has taken no proceedings to enforce his claim to the office.

We see no reason therefore to doubt the validity of the contract made by the supervisor under the direction of the commissioners appointed under the act of May 15, 1891, unless the whole proceedings are void for the alleged conspiracy to divert the public money directed to be raised by that bill to the private purpose of draining swamp lands by the reduction of the water in Black Lake.

This purpose is expressly charged in the complaint and substantially supported by the affidavits used before the judge who granted the preliminary injunction. But it is as expressly denied by the answer, verified by all of the defendants or nearly all of them separately, and it is also denied by the affidavits used on the motion at the special term to dissolve the preliminary injunction. The defendants also call attention to the seventeenth finding of fact by Justice Tappan in the case designated as the second Barker case, in which he finds that: “ Neither of the defendants' has conspired with any of their co-defendants or any other person to defraud the town of Oswegatchie of any money, and that each and every of the allegations in the complaint in that regard are unproved.”

While this finding may not in any way conclude the parties in this action, we think it may be taken into account by this court as bearing upon the question whether the order appealed from in this case, dissolving the temporary injunction therein, should be reversed.

As the whole equity of the plaintiffs bill of complaint is denied by the answer and met by controverting affidavits on this subject, we see no reason for reversing this order on this branch of the case. But it is urged that all of the acts of the defendants in procuring the passage of the act of May 15th and all acts done under it, were in violation of a judgment or order of this court made in what is termed the second Barker case.

That injunction was granted April 4th, 1890, and restrained the defendants in that action from issuing bonds under and in pursuance of an act, resolution or bill passed on or about February 18, 1890, by the board of supervisors of St. Lawrence county in relation to the building of a bridge across the Oswegatchie river at Eel Weir rapids in said town of Oswegatchie, and the defendants are severally therein enjoined from doing anything “ under or in pursuance of that act, bill or resolution of the board of supervisors of St. Lawrence county.”

I do not understand that it is alleged in the complaint in this action, or claimed from the proof, that the defendants in this action are proceeding under the act of February 18, 1890, but their proceedings as town officers, as a board of supervisors, as commissioners appointed by the board of supervisors, and as contracting parties, appear, so far as their acts are sought to be restrained in this action, to start with the application of the supervisor of the town for an act of the board of supervisors, which application is dated May 2, 1891, and appears to have no relation to the act of the supervisors of February 18, 1890, which has been declared by the decision of this court m Berlin Iron Bridge Co. v. Wagner, supra, to have been invalid.

But it is urged that the commissioner of highways had made a valid contract with the Berlin Iron Bridge Co. for the construction of a bridge at Eel Weir rapids, and that contract should be upheld and the contract under the act of the board of supervisors passed May 15, 1891, should therefore be held invalid.

We are not called upon on this motion to pass upon the ultimate validity of these contracts. It is not perhaps impossible that two valid contracts may have been made by which the other contracting parties, the town or some of its officers, may be bound. But we are not called upon to determine that question here.

We are really only concerned with the question whether the order appealed from should upon-legal grounds be reversed, and .upon the whole we see no ground for its reversal.

Order affirmed, with costs and printing disbursements.

Learned, P. J., concurs.

Landon, J.

(dissenting)—The-contract made by Wagner, commissioner of highways, with the Berlin Iron Bridge Company being valid, practically exhausts the subject, though it may be possible for the board of supervisors to provide for making á second arid wholly unnecessary contract with the King Iron Bridge Company for the same work, as to which I have grave doubts. Be that as it may, the court should do what it can to put a stop to double expenditure for the work. I, therefore, advise upholding this injunction, without prejudice to the plaintiff’s remedy for damages for breach of the contract with him.

Order affirmed, with costs and disbursements.


author: Mayham, J.

text:
    Matthew Barker, App’lt, v. The Town of Oswegatchie, Daniel Magone et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Contempt—Violation op injunction—Towns—Bridges.
    An injunction was granted restraining town officers from taking any proceedings, steps, acts or action under an act of the board of supervisors with reference to the building of a certain bridge and the raising of money therefor. Thereafter the supervisor, with the consent of the other town officers, applied for and obtained from the board of supervisors an act authorizing the building of such bridge and the raising of money. Held, that the injunction did not restrain the town officers from procuring the passage of a valid enabling act; that such act was valid, and that defendants could not be held guilty of contempt in procuring or acting under it.
    Appeal from an order refusing to punish as for a contempt.

      A. D. Wales, for app’lt; Daniel Magone, for resp’ts.
   Mayham, J.

This is an appeal from an order of a special term of this court, denying an application to punish Daniel Magone for an alleged contempt, for disobedience of an order of injunction granted in this action on the 4th day of April, 1890, restraining the defendants and each and every of them “ from taking any proceedings, steps, acts or action whatever, under and in pursuance of the supervisor’s bill of February 18, 1890, passed by the board of supervisors of St. Lawrence county, with relation to the Eel Weir bridge.”

This injunction was vacated by an order of the special term on the 26th day of April, 1890, and the order vacating the same was reversed by the general term and the injunction continued by an order of the general term on the 19th day of September, 1890. At the time of the service of this injunction the defendants, or some of them, were about to engage in the construction of a bridge at Eel Weir Eapids, under authority claimed to have been derived from an act of the board of supervisors of the county of St Lawrence, passed February 8, 1890, which act of the board of supervisors was, by the determination of this court in the case of the Berlin Iron Bridge Co. v. Wagner, as Commissioner of Highways, 32 St. Rep., 407, held to be invalid.

On the 15th of May, 1891, the supervisor of the town of Oswegatchie, with the written consent of the commissioner of highways, the town clerk, and three of the justices of the peace of that town, applied by a written application to the board of supervisors for authority to borrow money to build a bridge across the Oswegatchie river at Eel Weir Eapids, the place at which the bridge in the illegal act of February 8, 1890, was directed to be constructed, and the board of supervisors, on such application, passed the following bill:

“ An Act to authorize the town of Oswegatchie to borrow money for the purpose of building a new bridge across Eel Weir Eapids in the said town on the site of the present bridge, and appointing commissioners to construct the same, pursuant to chap. 482, Laws of 1875, and the several acts supplemental thereto and amendatory thereof.

“Passed by the board of supervisors of St. Lawrence Co. on the 15th day of .May, 1891, two-thirds of all the members elected thereto voting in favor thereof.

“ The board of supervisors of St Lawrence county do enact as follows:

“ Section 1. The supervisor of the town of Oswegatchie, by and with the consent of the commissioner of highways, town clerk and justices of the peace of said town, having applied therefor, said supervisor is hereby authorized to borrow money on the credit of said town, a sum not exceeding $10,000, at a rate of interest not exceeding four per cent per annum and execute the bonds of said town therefor, which bonds and the annual interest thereon shall become due and payable at the Ogdensburgh bank in said town as follows. Two thousand dollars on the 1st day of February in each of the years 1892, 1893, 1894, 1895 and 1896, respectively, interest to be paid annually on the 1st day of February on all sums remaining unpaid. There shall be levied and collected from the taxable property in said town in each year preceding the date at which the said bonds become due such sums of money as shall be required to pay the interest on said bonds and the face thereof at maturity.

“ Section 2. Said bonds shall be in the usual form of town bonds with interest coupons payable to bearer, and shall be signed by the supervisor and countersigned by the town clerk of said town, and a true record shall be kept thereof by both said supervisor and town clerk.

“ The supervisor of said town shall sell said bonds for the highest price he can obtain therefor, but not less than par value, and the whole or so much of the money received from the sale thereof as shall be necessary, shall be paid over to the commissioners hereinafter provided for, upon their order in payment for the construction of a bridge across the Bel Weir Rapids in said town, on the site of the present bridge.

“ Sect 3. Before issuing any town bond or bonds under the provisions of this act, the supervisor of said town of Oswegatchie shall execute a bond to the said town in the penal sum of $20,-000, with two or more sureties, the sureties to justify in the aggregate sum of $20,000, Said bond to be in addition to any and all other official bonds required to be given by said supervisor.

“ The condition of said bond shall be for the faithful performance of his duties under this act in the issuing of the town bonds herein authorized, and for the lawful application of the funds .arising therefrom, and the full accounting therefor of all the funds which may be raised by the tax for the payment thereof which may come into his hands annually to the board of supervisors. The bond to be approved by the board of town auditors of said town of Oswegatchie, and filed in the office of the town clerk.

“ Sect. 4. William J. Averell, Benton Devoy, Alexander Mayne, Henry Lovejoy and Daniel Magone, of said town, are hereby appointed commissioners for said town to construct the bridge hereinbefore provided for. Such commissioners shall keep a record of their proceedings, and no action taken by any of said commission ei's, individually, shall in any manner bind said town. Their order on the supervisor of said town shall be his warrant for payments on account of building such bridge.

“ They shall, on or before the 1st Monday in ¡November, 1891, and annually thereafter until such bridge is fully completed, file a verified statement of their expenditures with the town clerk of said town, which account shall be subject to audit by the board ■of audit. The commissioners" shall receive three dollars per day for each and every day devoted to the carrying out of their duties under this act

“Sect. 5. This act shall take effect immediately.”

From a careful consideration of all the evidence submitted to the special term on this motion, we are unable to find any positive proof that the defendant Magone, in the part he took in these proceedings in reference to the construction of this bridge, did, or assumed to do, anything under the act of the board of supervisors passed February 8, 1890.

On the contrary, the whole weight of evidence tends to establish that all he has done since the issuing of the injunction, which is claimed to have been violated, has been done under and in pursuance of the provisions of the act of May 15, 1891, which is herein set out in full.

As to the validity of that act we entertain no doubt Before the adoption of the amendment of the constitution 'of 1874, which took effect January 1, 1875, the power was vested solely with the legislature to authorize a town to borrow money for the construction of a bridge beyond the amount which a town was authorized by statute to raise for that purpose.

By § 18 of article 3, as amended, it was provided that the legislature should by general laws confer upon the several boards of supervisors powers of local legislation within their counties, and in pursuance of that constitutional provision, by chapter 482 of the Laws of 1875, the legislature passed a law conferring additional power of local legislation and administration upon such boards.

Subdivision 6 of § 1 of that act confers upon the board of supervisors the power “To authorize any town or towns liable for the erection, care, repair, maintenance, in whole or in part, of any bridge * * * to borrow such sums in the manner provided by subdivision 29 of this section as may be necessary for the purpose of such erection, care, repair and maintenance, and to pay any existing debts incurred in good faith by or on behalf of such town or towns before the passage of this act”

This section also provides that the power conferred by this act should not be exercised except upon the application of the town by the vote of the majority voting at the regular or special town meeting, or the application of the supervisor by and with the consent of the commissioner of highways, town clerk and justices of the peace of such town or towns respectively. By subdivision 29 of this section the board of supervisors may authorize any town to issue bonds.

The power which before the adoption of the constitutional amendment and before the passage of chap. 482 of the Laws of 1875, pursuant thereto, rested in the legislature upon these subjects of local legislation, was by these enactments transferred to-the board of supervisors, and those powers embraced as well the 'appointment of commissioners to co-operate with the town officers, as to the power to authorize the town to raise money for the purpose therein specified.

In this case the necessity of the erection of this bridge and the-liability of this town for its maintenance or repair are not disputed, and are abundantly established, and it can hardly be claimed that the effect of the injunction restraining action under the illegal -act of February 18, 1890, could operate as a legal restraint upon the town officers charged with the duties of maintaining this bridge, or from procuring the passage of a legal enabling act by the board of supervisors for its erection and maintenance, or prevent the defendants from operating in the construction of this bridge under the provisions of such legal act. If, therefore, the town officers could legally apply to the board of supervisors, and that board could legally pass this enabling act, it follows that no contempt proceedings can be legally predicated upon the performance of such legal act

The order denying the motion to punish the defendants for contempt must be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Landon, J., concur.


text:
    Matthew Barker, App’lt, v. The Town of Oswegatchie and Joseph McConville et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Costs—Extra allowance.
    By a resolution of the board of supervisors a town was authorized to issue $10,000 in bonds to build a bridge, but the supervisor and commissioners entered into a contract for building the bridge for $5,670. In this ■action brought to restrain the carrying out of such contract on the ground that such resolution was invalid," the plaintiff recovered. Held, that the sum named in the contract constituted the subject matter of the action, and that plaintiff was entitled to an extra allowance thereon.
    This Is an appeal from an order of this court made at special term refusing the application of the appellant for an additional allowance.

      A. D. Wales, for app’lt; Daniel Magone, for resp’ts.
   Mayham, J.

The plaintiff and appellant prosecuted this action as a taxpayer of the town of Oswegatchie, to restrain the defendants and each of them from taking any further action under or in pursuance of an act, bill, or resolution, of the board of supervisors of St. Lawrence county; passed February 18,1890. The wrongful act alleged in the complaint and which the plaintiff in this action sought to restrain was the carrying out or performance of an alleged contract, made by the town of Oswegatchie, through the -agency of its supervisor and a committee (who are named as defendants) appointed by the board of supervisors of St. Lawrence county, with the defendant, The King Iron Bridge Company, for the construction of a bridge in that town which the town was liable to build and by which contract the town was to pay the bridge company the sum of $5,670. The plaintiff succeeded in the action and by the judgment perpetually enjoined the performance of the contract or the payment of the contract price.

The court at special term held that the action was difficult and extraordinary, but that there was no definite sum in controversy upon which an additional allowance can be computed.

We think that was error. The subject matter directly involved in this action was the right of the defendants to perform a contract by which a direct pecuniary liability would be or was created against the town, to protect whose interests this plaintiff as a taxpayer was authorized to maintain an action. It is quite true that in determining the question whether or not this town should or could be liable for the contract price agreed to be paid for the construction of this bridge, the court had to inquire whether the board of supervisors had power to appoint the commissioners and put in motion the train of events which led up to the creation of the liability. But the same would be true if a party sued or defended an 'action upon a contract made with an agent.

If A. sued B. on a contract made with B.’s agent for $1,000 and B. defends on the ground that the alleged agent has no power to contract, and succeeds in his defence, I think it would not be doubted that if the action were in other respects one in which an additional allowance would be proper, an extra allowance would be granted, estimated upon the $1,000 which was the real subject-matter of the suit, although all the litigated controversy was upon the authority of the agent, and if the thousand dollars in the case supposed would be the subject in controversy, then it is difficult-to see why the $5,670 in the contract under consideration may not equally be taken as a basis for an additional allowance.

The appellant insists that this additional allowance should be computed upon the $10,000 which it is alleged the town voted. But the commissioners and the supervisor only sought to use the $5,670. It is true that $10,000 according to resolution and the contention of the defendants was the maximum sum which they were authorized by the resolution to use, but they could also by the resolution use a less amount and that they undertook to do,, and were prevented by the judgment in this action.

We are of the opinion that the $5,670 embraced in the contract constituted the subject matter of this suit, and as the plaintiff has succeeded in the action he is entitled to an additional allowance of five per cent on that amount

Order must be reversed, with ten dollars costs and printing disbursements.

Learned, P. J., and Landon, J., concur.


text:
    The People, Resp’ts, v. Luther S. White, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Forqery—Evidence—Cobeobobation of accomplice.
    The corroboration of the testimony of an accomplice required by the-statute must be as to facts showing the defendant’s connection with the-commission of the crime. Corroboration of other portions of the accomplice’s testimony is not sufficient.
    2. Same.
    In a prosecution of an indictment for aiding and abetting a forgery of a note the only testimony as to the commission of the crime was given by the person who forged the note and who testified that defendant told him to do so. He also testified that he had forged thirteen other notes, which were produced, under an arrangement with defendant. TLeld, that there was no sufficient corroboration and that the notes were improperly received in evidence as they were in no way related to the one in question.
    Appeal from judgment of conviction of the crime of forgery in the second degree, and from order denying motion for a new trial.

      H. Krum, for app’lt; Dow Beekman, for resp’ts.
   Landon, J.

The defendant was jointly indicted with one Wellington 33. Yanderhoof, for forgery in the second degree, for forging the name of Edward Yan Auken to a promissory note for $55 as maker thereof. The indictment charged that the forgery was done by Yanderhoof, but that the defendant “ aided, abetted, commanded, induced and procured ” Yanderhoof to do it Yanderhoof demanded a separate trial, which was granted, and thereupon the defendant was separately tried at the Schoharie sessions in December, 1889, found guilty and sentenced to imprisonment for five years. The defendant appeals from the judgment of conviction and sentence and from the order denying a new trial.

Vanderhoof was the principal witness against the defendant. He testified that he forged the name of Edward Van Auken, as maker of the note, and then uttered the note as genuine, and also that he did so at the instance and procurement of the defendant. Upon the whole evidence there was no doubt as to the guilt of Vanderhoof; the main effort of the People upon the trial was to-corroborate his testimony with respect to the guilty participation of the defendant. If, in that respect, the corroboration is insufficient, or is based upon incompetent evidence to which the defendant duly objected, then the conviction was erroneously procured. Vanderhoof, upon his own testimony and upon the theory of the People, was an accomplice; unless we assume that fact for the purpose of this review, the conviction should be reversed as wholly unsupported. The Code of Criminal Procedure, § 399, provides : “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as-tends to connect the defendant with the commission of the crime.”

It is obvious from the statement already made that the “other evidence ” cannot “ tend to connect the defendant with the commission of the crime ” unless it bears in some slight degree upon the alleged acts of the defendant implicating him in procuring, or advising, or requesting Vanderhoof to commit it. Vanderhoof might relate a hundred circumstances of his co-operation with the defendant in matters near to this crime in point of time and locality and be corroborated in them all, and yet none of them amount to legal corroboration unless they touched in some degree some fact necessary to constitute defendant’s commission of the crime itself or to' show his previous connection with it Vanderhoof comes to the witness stand confessedly guilty of the crime himself; the People commend him to confidence by calling him; they desire to treat him fairly, and in this they are liable to err in his favor; his hazard of punishment is not increased, and he may hope that it will be diminished; he may with seeming safety gratify his malice against the defendant, and he may reasonably hope to excite such commiseration as will mitigate his fate, if he can shift from himself to the defendant a part of the responsibility for his own guilt. The law would be justly subject to reproach if it allowed him to interweave his story of the defendant’s guilt, as to which he could in no wise be corroborated, with the truthful tale of other circumstances as to which corroboration would be easy, and then should infer the truth of the charge of crime from the truth of the statements into which the charge was interwoven. Since the enactment of the section quoted the courts have uniformly held that there must be some-evidence other than that of the accomplice fairly tending to connect the defendant with the commission of the crime. People v. Elliott, 106 N. Y., 288; 8 St. Rep., 703; People v. Everhardt, 104 N. Y., 591; 5 St. Rep., 793 ; People v. Ryland, 97 N. Y., 126; People v. Jaehne, 103 id., 182 ; 3 St. Rep., 11; People v. O'Neil, 109 N. Y., 251; 14 St. Rep., 829 ; People v. Plath, 100 N. Y., 590.

Tested by this rule we think this conviction must be reversed, because it is based upon evidence which was incompetent either to sustain the principal charge, or to corroborate the accomplice, or for any purpose relevant to this trial.

The note in question was made June 1, 1887. In the fall of 1886 G. B. Lampman, as agent for E. D. Larkin in the sale of grain drills, had left with Lincoln Yan Auken near Middleburgh a grain drill on trial, price $85, to be paid for the following spring if satisfactory. In the spring of 1887, Yanderhoof became the agent at Middleburgh for Larkin in the sale of grain drills, and Lampman left with Yanderhoof for settlement the transaction with Lincoln Yan Auken about the grain drill on trial. Yanderhoof had agreed with Yan Auken to take pay in hops. June 1, 1887, ■Lampman came to Middleburgh and asked Yanderhoof to pay ■him for the grain drill or give him the buyer’s note. Yanderhoof had not then received the hops. Lampman drew the note in question and handed it to Yanderhoof to get the buyer’s signature. Thus far there is no question about the facts.

Taking up Yanderhoof s testimony at this point, we find it as follows: “ I then went down to White and told him Lampman was out and wanted pay for the drill either in money or the note, and that I could not get any note or pay for the drill of Yan Au-ken, and that he (Yon Auken) wanted to deal the hops instead of paying or giving a note. Lampman made out this note, filled the body of it out himself, and I took the noté and went down to White’s, and there I signed the note with Yan Auken’s name to it; at White’s office; nobody there but White and myself. White said: Sign Yan Auken’s name to the note, and it could not be found out but what Yan Auken had this property, and the note would be better in his name than in any other party’s. ’ ” Edward Yan Auken, whose name Yanderhoof wrote as maker of the note, was the father of Lincoln, and the two lived together.

It is thus seen that the proof of the guilt of the defendant requires some corroboration of Yanderhoof’s testimony that the defendant told him to sign Yan Auken’s name to the note. Direct corroboration there is none. If the defendant spoke the words, they were heard by no one except Yanderhoof; the defendant has made no confession. The People rely upon a circumstantial corroboration. The question is whether it tends to support Yanderhoof’s testimony that the defendant told him to forge Yan Au-ken’s signature to the note.

Yanderhoof was a young man about twenty-threeyears of age; he commenced to act as agent for the sale of agricultural implements at Middleburgh, in the spring of 1887. It does not appear that he had previously lived in that village. The defendant was ten years older, was engaged in the coal business at Middleburgh, and was in good credit; fairly prosperous, active and eager to make money, and disposed to make it both in his regular business and outside of it in small speculative trades and in buying notes. His general reputation was good. He and Vanderhoof had known each other three or four years before Vanderhoof came to Middle-burgh. Vanderhoof testified that soon after he commenced selling agricultural implements, about two months before the date of this forgery, the defendant solicited two interviews with him, in the first of which he asked Vanderhoof how he made his payments to his principals, Larkin, and Childs & Co.; that he told the defendant that he had to make them in cash or good endorsed notes; and at the second interview, defendant told him that hell ad been thinking of a little scheme that would work between the two; that he should turn over the notes and accounts to the defendant, and he could use the money to advantage in his business, and they would forge notes against good parties and send them to Vanderhoof’s principals; that if Vanderhoof had to sell some goods less than cost, the defendant would make good the loss out of his coal sales in the fall and pay him $500 besides; that Vanderhoof consented to this arrangement; that they began by forging four or five notes, Vanderhoof forging two or three, and the defendant the others; that these notes were taken up when due ; that other forgeries followed in like manner, and the notes-were taken care of and returned to the defendant, who destroyed them; and the note in question was made in the course of these transactions under the circumstances already detailed Of course the destroyed notes were not produced. But there were produced upon the trial thirteen or more notes, all of which were forgeries. Vanderhoof testified that the defendant forged two of them, one in the name of John Bush as maker, and the other in the name of ¡Robert Smyth as maker, and that he, Vanderhoof, forged the others under the defendant’s direction. The comparison of the forged names, John Bush and Bobert Smyth, with the names which Vanderhoof testifies that he forged to the other eleven notes shows features in common, and that his skill in forgery had definite characteristics and limitations which appear in like "manner in the forged names of Bush and Smyth as in some of the other forged names having some of the same letters.

The defendant in his testimony contradicts fully the testimony of Vanderhoof respecting defendant’s proposal of forgery and subsequent participation in it. He testified that he did cash notes for Vanderhoof “at a shave,” lent him money on others, signed a note for his accommodation and took as security an assignment of notes and accounts. That on the 10th day of October, 1887, he discovered that Vanderhoof had put forged notes and fictitious accounts upon him; that he thereupon took counsel and was advised to get further security, and saw Vanderhoof and obtained it in the form of bills of sale of personal property and a mortgage upon his wife’s real estate; that the defendant told Vanderhoof that as fast as he could pay him he would release the property, and Vanderhoof did make some payments. Presently other forgeries of Vanderhoof transpired, and on November 10, 1887, he ran away. Having sold his goods during eight months of business for less than they cost him, paid some money to his principals and protected some of the forged paper he had sent them; paid the defendant liberal “ shaves” for cashing paper; transferred to him notes and accounts to secure his endorsement; turned over to him all he had left to secure him against other forged paper which he had passed upon him, added to the expense of support for himself and wife, it is easy to see that in the end about all of his assets were in the hands of the defendant. Thus Yanderhoof is amply corroborated as to his general dealings with defendant After he had been gone some months he told his creditors something like the story he testified to upon this trial. The fact, easily proved and never concealed, that the defendant had the dealings with him which the defendant admits, made an apparent corroboration of Yanderhoof’s testimony, and gave him credit with the jury when he also testified that the securities which he gave the defendant were not given for actual liability, but as mere covers to enable Yanderhoof to cheat others, and con■ceal the true transactions between the parties.

There was some evidence tending to show the defendant’s desire, after criminal proceedings were threatened against him, to take up the YanAuken note and to prevent proceedings before the grand jury. There was also evidence of acts of defendant tending to the protection of Yanderhoof against prosecution for his forgeries. This evidence was doubtless properly received. We do not say that it tended to corroborate Yanderhoof’s testimony accusing the defendant of the YanAuken forgery. Such •conduct of the defendant may have been inspired by his connection with that forgery, or by some other motive. If the jury had any reasonable doubt as to its significance they would give the defendant the benefit of it

But we have no doubt that the other notes and Yanderhoof’s testimony that defendant was guilty of participation in their forgery were improperly admitted in evidence. The defendant was not on trial for their forgery, and yet he was put upon trial in that respect, and was certain to be convicted upon this note if there should appear a probability of his guilt in respect of any one of the many others. This is not a case in which proof of other like acts is competent in order to show the criminal intent of an act which may be innocent. A person may innocently pass a counterfeit bill; the presumption would be strong that he did so if he passed but one and had no more. The presumption weakens as the like act is repeated, and its repetition may therefore be shown. So a person may innocently take another’s money in the act of making change; but he may do the like act in the like manner so often as to convince a jury that it is one of his ways' of stealing. People v. Williams, 58 Hun, 278 ; 34 St Rep., 675. But proof of participation in the forgery of a promissory note and in the use of it as genuine is of itself proof of the guilty intent. The defendant may be insane or the victim of deception; if the evidence raises such a question, it would of course be proper for the People to meet it; no such question was raised by the evidence in this case, and there was no question but that the proof of his participation in the act would be proof of the guilty intent of the defendant

The People allege a conspiracy between Vanderhoof and defendant to commit forgeries, and then invoke the rule that the -conspiracy being first proved, every act in furtherance of the conspiracy may be shown. But if the conspiracy is a constituent part of defendant’s guilt, or of the evidence tending to establish it, then Vanderhoof’s testimony respecting its existence must be ■corroborated by other evidence. To say that the other notes furnish such evidence, is to say that Vanderhoof’s testimony corroborates itself, since there is no evidence, other than his testimony, that the other notes were the product of the conspiracy. The existence of the conspiracy rests upon his unsupported testimony, as also the alleged acts in furtherance of it. As both branches of the proposition are unsupported, it is plain that one of them can give no support to the other. However the rule may have been before the statute required other evidence in corroboration of the "testimony of the accomplice, the' statute now forbids the admission of evidence of such acts in furtherance of a conspiracy as •depend solely upon the existence of the conspiracy for their admissibility, unless the testimony of the accomplice as to its existence is corroborated by other evidence. Otherwise, testimony tending to convict the defendant, whose significance and relevancy ■depend upon the fact of a conspiracy, would be received without ■establishing the fact.

But if it were proved that all the other notes were forged by both Vanderhoof and defendant, that would only afford evidence of a conspiracy as to them; not as to this note. Even Vanderhoof in his uncorroborated testimony does not claim that this note is so related to the others as to be part of their existence, or to stand to them as cause or effect. Vanderhoof’s testimony respecting the conspiracy or its covering this note was not corroborated by the other notes or his testimony respecting them, nor by both. The notes were competent neither to prove the crime charged, nor the conspiracy to commit it. Independently of Vanderhoof’s testimony that the defendant assisted in their forgery, the notes had no significance. That testimony, standing alone, could give them no significance. Whether Vanderhoof was or was not corroborated with respect to the other notes, they were equally incompetent, since they were not a constituent part of the crime charged, or any inducement of fact leading to it, or in concealment of it: and were prejudicial to the defendant since they exposed him to conviction by the jury upon evidence not touching the charge of which he was accused.

Both Vanderhoof and one Jones testified to their riding around together to visit certain customers of Vanderhoof in order to procure notes from them, and failing to find any of them. Vanderhoof testified that, in order to mislead Jones, he inquired for one •customer at the house of another, and thus failed to get any notes, and then put off Jones by telling him he would himself get the notes, and send them to him, and that he afterwards sent or gave him forged notes. He testified that he did this at the suggestion of the defendant. It is plain that the corroboration by Jones of the fruitless journey, and of his subsequent receipt of the forged notes, is no corroboration of Yanderhoofs statement that he acted upon defendant’s suggestion. Besides, none of these notes had any connection with the Yan Auken note. If one forgery is proof of another one not connected with it, proof of one would suffice to convict the defendant upon the seventeen indictments against him.

The judgment should be reversed, and a new trial granted.

Learned, P. J., and Mayham, J., concur.