text:
    JOHN L. BROWN, as Executor, and HANNAH E. BROWN, as Executrix, etc., of JOHN L. BROWN, Deceased, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Lien of attorney for costs — how determined — when it attaches — Equitable assignment— Compensation for attorney’s services — maybe determined by reference— Cross-examination— duty of pa/t'ty to produce witness for.-

    The lien of an attorney, and his rights, under an equitable assignment for the payment of his costs and compensation, upon a judgment recovered by his client, may be heard and determined upon a petition and reference.
    But until a judgment be recovered no lien arises.
    Where several actions have been commenced by an attorney for the same client, a judgment in any one of such actions, is subject only to a lien for the amount which the attorney is entitled to receive for costs and compensation in the action in which the judgment was recovered.

      A firm of attorneys, carrying on several actions for a client, presented a bill for services rendered; whereupon the client agreed that their “costs, fees and disbursements ” in the several actions, together with the bill rendered, “should be retained by them, and paid out of the first moneys which should be collected or received from the city, they conducting the proceedings, meanwhile, without receiving payment,” and the attorneys did accordingly conduct such proceedings. Held,

    That the agreement constituted a valid, equitable assignment of so much of the first moneys collected as was necessary to satisfy the attorneys’ claim;
    That, as the amount of the compensation was not fixed, it must be understood to be whatever would be a fair and reasonable compensation for the services rendered;
    That such amount might be determined upon a reference, ordered upon the petition of the attorney.
    A witness, called by plaintiffs, was twice produced for cross-examination, and each time .defendant declined to cross-examine him. Held, that plaintiff was under no obligation to produce him again, and that if defendant wish to examine him, by way of cross-examination or directly, he must subpoena him himself.
    Appeax from an order confirming tbe report of a referee.
    Tbe reference was ordered to determine tbe extent of tbe lien of tbe attorneys of tbe plaintiffs’ testator upon a judgment recovered in tbis action.
    A number of other motions relating to tbis reference and tbe appeal from tbe order confirming tbe report, were considered and decided at tbe January term, tbe decision being reported in 16 Supreme Court Reports (9 Hun), 587.
    Devebn & Miller were tbe attorneys of Jobn L. Brown, wbo was largely engaged as contractor in carrying on pubbc works for tbe city. Yery large amounts being due upon these contracts Develin & Miller were employed by him, in 1871, to recover tbe moneys due him from tbe city. Several suits were brought which were contested. In one, judgment was recovered, but appeals were taken. In 1878 tbe attorneys rendered a bill for $5,738.81. Brown was unable to pay then, but upon its rendition agreed with tbe attorneys that they, conducting tbe several suits without payment, should, out of tbe first moneys collected or received from tbe city, retain their costs, fees and disbursements. Tbis suit was contested. Plaintiff was nonsuited at Circuit. Tbe General Term affirmed tbe judgment entered on tbe nonsuit. Tbe Court of Appeals reversed tbe judgment below.

      After this decision a settlement was agreed upon and was about being consummated when an application was made, on the part of the attorneys, to prevent the payment of the moneys until their claim was adjusted. Upon that motion an order was made appointing Philo T. Buggies referee to ascertain and determine what amount ought to be paid to plaintiffs’ attorneys, and the sum of $25,000 was ordered to be retained by the defendants to satisfy such lien.

      Robb. L. Fowler, for the appellants.

      TL. H. Anderson, for the respondent.
   Davis, P. J.:

In an action between these same parties, lately decided, we held that the questions touching an attorney’s hen, and his rights under an equitable assignment for tbe payment of bis costs and compensation, might be beard and determined upon petition and reference, as was done in tbis case. That question is no longer an open one in tbis court. (Rooney v. Second Av. R. R. Co., 18 N. Y., 368; McGregor v. Comstock, 28 id., 231; 3 id., 211; Richardson v. R. R. Co., 7 Hun, 69; opinion of Davis, P. J., in Brown v. The Mayor, 9 Hun, 581.)

No objections were taken to any portion of tbe testimony of Devlin and Trull, who were called as witnesses on behalf of tbe claimants, on tbe ground of tbeir incompetency to testify to transactions bad with John L. Brown, tbe testator of tbe plaintiffs, in tbe above entitled action. Some parts of tbeir testimony were, doubtless, obnoxious to sucb an objection, but by far tbe greater part was not. After tbe bearing before tbe referee was closed, motions were made by tbe appellants’ counsel to strike out tbe whole of tbe testimony of each of these witnesses, on tbe ground of tbeir incompeteney to testify to communications and transactions bad with tbe deceased. These motions were denied by tbe referee. His decision was correct for two reasons : First. Tbe motions came too late, not having been made till after tbe bearing was closed. Second. Tbe motions asked for too much. They should have pointed out tbe objectionable testimony, and not asked to have tbe whole of tbe evidence stricken out because some portions of it were incompetent.

When the testimony of Mr. Devlin was closed on his own behalf, his cross-examination was reserved by the appellants. He was afterwards called again on behalf of the claimants, but was not then cross-examined.

It does not appear affirmatively in the evidence what afterwards took place, in respect of his production by the claimants for the purpose of cross-examination, but it does appear that after the appellants had taken the case, and called and examined some witnesses, they required that Mr. Devlin should be produced for cross-examination before they went further with their side of the case. The counsel for the claimants stated that Mr. Devlin had already been twice produced f0r cross-examination, and that the counsel who then appeared for appellants had declined to cross-examine him; that he was then in ill health at Richfield Springs, about 300 miles from New York, and the counsel refused to produce him. The counsel for appellants stated that the claimants’ counsel was mistaken about the waiver of cross-examination, and offered to postpone the hearing till Mr. Devlin could be produced on Ms return to town, to which the counsel for claimants replied that they had discharged their whole duty in the matter, and should not produce Mr. Devlin for cross-examination then or at any other time. The appellants’ counsel refused to proceed with their case, and objected that they should not be required to go on till Mr. Devlin should be produced. The referee, in substance, overruled the objection, and held that the case should proceed. In his report, the referee states that Mi'. Devlin had been twice produced for cross-examination, and that the’ counsel then present for appellants had declined to cross-examine him.

We must take this statement of the referee as true, because there is nothing in the papers before us to contradict it. The mere absence of a statement of the fact in the minutes does not have that effect. The exception based on the refusal to produce Mr. Devlin for cross-examination was properly overruled by the Special Term. Under the circumstances, as they are stated by the referee, the obligation to produce Mm had ceased, and it was the duty of the appellants, if they wished to examine him, either by way of cross-examination or directly, to subpoena and produce him themselves.

The law of this State in respect of the lien of an attorney for costs seems to be well settled. Aside from the specific lien on deeds, papers and valuables in his hands as attorney, and which may be held for any general indebtedness for services (the extent of which lien is not now under discussion), an attorney has a lien for his costs in an action prosecuted by him, upon the recovery of a judgment. This formerly extended only to the taxable costs which were the legal measure of his compensation, but under the Code, which authorizes express or implied agreements between attorney and ehent as to such compensation, it embraces any amount expressly or impliedly agreed upon, as well as such part of the taxable costs and disbursements as may belong to him. (Rooney v. Second Av. R. R., 18 N. Y., 368; Sherwood v. Buffalo and W. Y. R. R. Co., 12 How., 136; Haight v. Holcomb, 16 id., 173; Pinder v. Morris, 3 Caines, 165 ; Bradt v. Koon, 4 Cow., 416; Howland v. Taylor, 6 Hun, 237. Bartle v. Gilman, 18 N. Y., 260 ; Moore v. Westervelt, 3 Sanford, 762.) But until there be a recovery of judgment no hen arises. (Pulver v. Harris, 52 N. Y., 73 ; Martin v. Hawks, 15 Johns., 405; Shank v. Shoemaker, 18 N. Y., 489; Foot v. Tewksbury, 2 Vt., 97; 1 Wait’s Actions and Defenses, 454.)

In St. John v. Diefendorf (12 Wend., 261), the question was, whether an attorney had a hen upon the damages recovered in a judgment to satisfy a demand against his chent for costs in other suits, and the court held, as Savage, Oh. J., tersely expressed it, that “ there can be no hen upon what belongs to. another, without possession.”

'In this case, the learned referee erred in holding that the claimants had any hen upon the moneys paid, or to be paid, on the settlement beyond the amount they were entitled to for their costs and compensation in the case in which they had recovered judgment. In one case, that is in the action upon the First avenue contract, it appears that the judgment had been recovered on the trial before a referee, which was reversed on appeal, and a new trial ordered, and that on such new trial a judgment for upwards of $35,000 was recovered, from which an appeal had been taken, and was pending when a compromise with the city was made. It is understood by us that that judgment was embraced in the compromise. If that be so, the claimants had a lien for their costs and compensation upon so much of the moneys as were paid to effect tbe compromise of tbat judgment.

Tbe referee bas found tbat they were entitled to tbe amount of tbe costs as adjusted, and $5,000 for tbeir compensation in tbat case. There was no conflicting evidence as to these amounts, and, on tbe assumption tbat tbe compromise included tbat judgment, there seems to be no good reason why tbe lien may not be upheld.

There was no attorney’s lien, under tbe law, for services rendered in tbe Tenth avenue suit, because tbat case bad never reached judgment against tbe defendant therein. Tbe plaintiff was beaten at Special Term, and on tbe appeal to tbe General Term, but succeeded in reversing both judgments and obtaining an order for a new trial in tbe Court of Appeals, after which, and before any judgment, tbe compromise was made. No attorney’s lien for costs existed under tbe authorities above cited. Tbe same thing is true in respect of tbe account presented to Mr. Brown in 1873. Tbe referee erred in' bolding tbat tbe claimant bad any attorney’s lien for tbe amount of tbat account. But tbe referee found, in regard to tbat account and tbe other claims, as follows :

I do further find and report tbat, in addition to tbe lien of tbe said attorneys, there was a special promise and agreement made by said John L. Brown to and with tbe said Devlin and Miller, tbat tbeir costs, fees and disbursements in tbe several matters testified to before me, including a bill of $5,738.31, should be retained by them and paid out of tbe first, moneys which should be collected or received from tbe city, they conducting tbe proceedings meanwhile without receiving payment, and tbat they did conduct such proceedings.” This finding was excepted to by tbe appellants, and such exception raises two questions : First. Whether tbe evidence in tbe case justified such finding ? Second. Whether tbe agreement, as found, is sufficient to operate as an equitable assignment, fro tcmto, of tbe money paid, or to be paid, by tbe city on tbe settlement of tbe actions ? Tbe evidence of tbe agreement was given wholly by tbe witness John Wetherell, who testified tbat be was a partner of John L. Brown in tbe contracts. In relation to tbe agreement, bis testimony was as follows :

“Q. Do you recollect a bill being rendered by Devlin and Miller to Mr. Brown, some time in tbe year 1873? A. Yes, sir. Q. Do you recollect the amount of it ? A. I think it was about $6,000. Q. Did you, at Mr. Brown’s request, see Devlin and Miller, after the rendition of that bill, and make any statements to them on the subject of its payment ? A. Yes, sir; Mr. Brown and I conversed about the matter, and he asked me if I would step down town to Devlin and Miller; after consultation, at his request, I went down and saw Messrs. Devlin, Miller & Trull; I have forgotten which one of the partners I did see now; I stated to them that the first money that came in their bill should be paid, out of the first moneys that we received from the city. Q. Was any thing said to them, to your knowledge, with reference to Mr. Brown’s money being tied up, or having any money to pay, excepting that which came from the city? A. Yes, sir; in conversation, I stated that all Mr. Brown’s affairs were tied up, and there was no way of getting the money except that came from the city. Q. Was it stated to them that they had charge of all these suits and litigations, and when the money came in they could be paid for all theff services out of it? A. Yes, sir; that was the direct conversation between me and Mr. Devlin and Miller with Mr. Brown, when I was present. Q. Did you hear Mr. Devlin’s testimony ? A. Yes, sii-. Q. Were you cognizant of these various services? A. I was.”

From this testimony, we think the referee could properly find an express agreement, that the account which had been presented to Brown should be paid out of the first moneys received from the city, and that the services of the claimants in all the suits and litigations should be paid out of - the money when it came in. Those suits were then pending, and there seems never to to have been any thing paid for the services rendered in them. It was competent for Brown to have made an express written assignment of the moneys to be realized, to the extent necessary to pay for the services of the claimants in full. Had he done so, there could be no question, as between himself and them, as to their right to compensation out of the fund realized by the settlement; and, under the authorities, if he had made an agreement with his attorneys that they should have for their compensation a stipulated share of all moneys collected or received, that would, upon the recovery of judgment, have operated as an equitable assignment. (Rooney v. Second Av. R. R. Co., 18 N. Y., 368 ; Ely v. Cooke, 28 id., 365 ; McGregor v. Comstock, id., 237.)

In this case, the agreement did not fix the amount of compensation, but it must be understood as agreeing that whatever would be a fair and reasonable compensation should be so paid. The question arises between the attorneys and their client, and not between the claimants and the defendants in the actions, and therefore no question of notice of the attorneys’ rights, which has been of grave importance in many of the cases, arises. The money paid by the defendants has been intercepted and arrested by the order of the court, to abide the decision of the question of the lien and equitable assignment. If the equitable assignment be established, we see no good reason why the court may not, as between the claimants and their client, determine in this proceeding what is the just and fair compensation which the client agreed should be paid out of these moneys, and enforce the equitable assignment to that extent. If no case precisely analogous in its facts can be found, yet the principle of many of the cases already cited uphold the enforcement of such an assignment. (See, also, Marshall v. Meech, 51 N. Y., 110; Christie v. Sawyer, 11 N. H., 298 ; Jordan v. Gillen, id., 121.)

The equitable assignment (except in regard to the bill which had been presented to Mr. Brown) depended for its amount upon proof of a guanfum merwit. On that question, the only testimony was that of Mr. Devlin and Mr. Trull, and from their testimony the referee found, and the court at Special Term has also found, that the charges are, under all the circumstances, a fair and reasonable compensation. That the amount was not contested is no fault, certainly, of the claimants, and we do not feel at liberty to interfere with it.

It follows that the order of the Special Term appealed from should be affirmed.

Brady and Daniels, JJ., concurred.

Order affirmed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    FRANCIS G. SALMON, Respondent, v. JOSEPHINE M. ALLEN, Impleaded, etc., Appellant.

      Actionfor foreclosure of mortgage ■ — parties to — rights of junior incumbrancers.

    The appellant, in pursuance of a contract with O. H. Beman, conveyed certain premises to one D. D. Beman, and took hack a purchase-money mortgage. Subsequently, D. D. Beman executed a second mortgage to said 0. H. Beman, who afterwards assigned it to one Riggs, as collateral security for advances, and the same was subsequently assigned to one Boody, both assignments being recorded. Thereafter, in an action brought to foreclose the first mortgage, to which D. D. and 0. H. Beman were, but Riggs and Boody were not, made parties, a sale was ordered and the premises were pm-chased by Allen, who conveyed them to Gedney, who is also a party defendant in this action.
    Subsequently Boody assigned his mortgage to the plaintiff for a nominal consideration. In an action for the foreclosure thereof brought by him, to which appellant was made a party, the referee directed a sale of the premises, subject to the lien of appellant’s mortgage.

      Meld, that the mortgage could be enforced by plaintiff for only that amount which was due to Riggs from 0. H. Beman, at the time of the assignment to Boody; that the remainder thereof belonged to 0. H. Beman, and was cut off by the foreclosure to which he was a party.
    That the plaintiff had no right to make the appellant a party to the action, and should be charged with her costs therein.
    That it was error to order a sale subject to the lien of appellant’s mortgage; that plaintiff was only entitled to a judgment allowing him to redeem the premises, by paying to her what was due upon her mortgage.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      O. M. Marsh, for the appellant. .

      M. B. Smith, for the respondent.
   Davis, P. J.:

The facts of this case as they appear in the findings of the referee and in the evidence, are substantially as follows: The appellant was owner of certain premises which she contracted to sell to one Charles H. Beman. The contract provided for the conveyance by the appellant to Beman, when he should have commenced and brought the building of certain houses to a designated stage. Afterwards, when Beman had commenced such buildings and had

become entitled to tbe conveyance, tbe appellant, at his request, conveyed tbe premises to one Daniel D. Beman, wbo executed to ber a purchase-money mortgage for $10,000. Daniel D. Beman, subsequently, at tbe request of Charles H. Beman, executed to bim tbe bond and mortgage sought to be foreclosed in this action. Charles H. Beman assigned this mortgage to one Biggs, as collateral security for certain advances; Biggs subsequently assigned tbe same to one Boody. These assignments were put upon record. Mrs. Allen, tbe appellant, commenced a foreclosure suit of her mortgage, executed by Daniel D. Beman for tbe ptmcbase-money of tbe premises, and to that action she made parties defendant Daniel T. Beman and Lucinda bis wife, Charles H. Beman and others, but did not make Boody, tbe assignee wbo then held tbe mortgage as collateral security, a party. Upon a decree in that foreclosure suit, tbe property was sold and bought by Mrs. Allen, and by ber contracted to be sold and afterwards conveyed to one Charles G-edney, wbo is a party defendant to this action. After tbe judgment of foreclosure in Mrs. Allen’s action, on May 7, 1873, Boody assigned tbe bond and mortgage, given by Daniel T. Beman to Charles H. Beman, to tbe plaintiff, as attorney, for a nominal consideration. Subsequently, tbe plaintiff commenced this action of foreclosure upon tbe mortgage assigned to bim, making Gedney and bis wife and the appellant Mrs. Allen, parties to tbe action, and alleging in bis complaint that they claimed to have or bad some interest in or lien upon tbe mortgaged premises or some part thereof, which interest or lien bad accrued subsequently to tbe lien of bis mortgage. Mrs. Allen answered in tbe action, amongst other things averring that tbe mortgage made by Daniel T. Beman to Charles H. Beman, which tbe plaintiff was seeking to foreclose, bad no valid or legal consideration, and setting up tbe purchase-money mortgage made to ber and tbe foreclosure thereof and tbe sale and purchase by ber, and that she bad taken possession of tbe property and conveyed the same to Gedney, and that a large sum of money, to wit, $20,000 or $25,000 bad been expended in erecting buildings thereon, and praying that tbe mortgage mentioned in tbe complaint of tbe plaintiff be adjudged to have been foreclosed and cut off by tbe judgment in ber action.

It appears that tbe assignment of tbe plaintiff’s mortgage by Charles H. Beman to Biggs, was made as a collateral security for moneys advanced; that the assignment to Boody was substantially of the same character, and that the assignment to the plaintiff in this action was, substantially, without consideration.

The referee has found all these assignments to have been made in good faith and for valuable consideration. He does not seem to have regarded it as of any importance that these assignments were made as collateral to an indebtedness, which may have been at the time of Mrs. Allen’s foreclosure much less than the amount of the mortgage now sought to be foreclosed. Charles H. Beman was a party to that foreclosure, and so far as he had any interest in the mortgage which had previously been assigned by him as collateral, to Biggs, and then by some arrangement transferred also as collateral to Boody, that interest was cut off by the foreclosure sale. The referee ought, therefore, to have made some inquiry into the condition of the claim which Boody had to the mortgage at that time, so as to have ascertained the amount for which he was entitled to hold it as collateral as against Charles H. Beman. The plaintiff as assignee of Boody, is only entitled to enforce that mortgage, under the circumstances, for the amount and to the extent that Boody could have claimed as between himself and Charles IT. Beman (for all beyond that would be Beman’s interest in. the mortgage), and that would be only for the amount that Biggs is entitled to hold it for, as between him and Beman.

The referee does find that the claim and interest of Biggs in the bond and mortgage was transferred to Boody for value, but fails to find what that interest was. Biggs could convey no greater interest, by his assignment to Boody than he himself had as between him and Beman, and, therefore, if Beman had any interest in the mortgage which was held by Biggs as collateral, it would be cut off pro tambo by the foreclosure; and equity would only permit the enforcement of the mortgage as against the property, under the circumstances of this case, to the actual amount at which Biggs and Boody could hold it in a controversy between them and Beman. On this question the case is not only in some degree of confusion, but has a somewhat disagreeable atmosphere.

The plaintiff had no right to file his bill of foreclosure in the manner he did, malting the appellant a party as an alleged junior incumbrancer. By doing so he necessarily forced her to come in and answer and set up the facts of the case for her protection; and for that reason he ought to have been charged with the costs of the defense.

But a serious difficulty arises in this case upon the facts found by the referee, and established by the evidence, as to the remedy to which the plaintiff is entitled. By the foreclosure of Mrs. Allen’s mortgage and her purchase at the sale, the fee has become vested in her and her mortgage is completely extinguished. By the failure to make Boody a party to that suit the foreclosure is inoperative to cut off his right of redemption; but it does not follow from that fact that he has the right to treat the mortgage -to Mrs. Allen as still subsisting as a mortgage only, and to have the judgment of the court directing that the premises be sold on his mortgage subject-to the lien of Mrs. Allen’s mortgage. That course would tend to throw the title into great confusion, for there can be no doubt that, as between the owner in fee and the other persons who were made parties to the foreclosure of Mrs. Allen’s mortgage, her title to the lots under the foreclosure' is complete, and her mortgage is extinguished by the conveyance to her of the fee under the decree.

All the right that the plaintiff has, therefore, in equity, under his junior mortgage, is the right to redeem the premises from Mrs. Allen, by paying off the amount of her mortgage and interest, unless she chooses to come in and pay the amount of his mortgage for the purpose of perfecting her title.

The complaint and answer present together a state of pleadings under which, on proper findings by the referee, a proper judgment can be made by the court. We think it was not proper to have adjudged a sale of the fee of the premises subject to the lien of Mrs. Allen’s mortgage, as the judgment in the court below does, but that instead of such a judgment a decree of redemption should have been entered in accordance with the established practice in equity. (Gage v. Brewster, 31 N. Y., 218; Vroom v. Ditmas, 4 Paige, 526; Vanderkemp v. Shelton, 11 id., 28; Benedict v. Gilman, 4 id., 58; Pardee v. Van Anken, 3 Barb., 534; Brainard v. Cooper, 10 N. Y., 356; see opinion of Mullin, J., in Gage v. Brewster, supra, at p. 226 ; People v. Beebe, 1 Barb., 379 ; 2 Barb. Ch. Pr. [rev. ed.], p. 193 et seq., and notes.)

Upon the facts before the court, the decree might probably be modified, but we think the question as to the amount for which the plaintiff’s mortgage is a substantial lien on the equity of redemption, as above suggested, ought to receive further investigation.

¥e have not considered the question whether the plaintiff should be charged with the value of subsequent improvements in order to redeem. The facts upon which that question can arise will probably be more fully presented upon another trial.

The judgment should be reversed, new trial granted, with costs to appellant to abide event.

Brady and Daniels, JJ., concurred.

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


text:
    GEORGE A. MORRISON and others v. CHARLES B. PERRY and RICHARD W. LESTER.

      Dissolution of pa/rtn&i'ship — power of sv/nmor to execute notes.

    Upon tlie dissolution of a partnership, caused by the sale by one partner of all his interest therein to the other, who agreed to pay all partnership debts, the latter executed a promissory note in the firm’s name, to a creditor of the firm, for a then existing indebtedness, the latter being ignorant of the dissolution of the firm. In an action upon it, held, that the surviving partner had no authority to execute the note, and that the retiring partner was not liable thereon.

      Semble, that an agreement by the creditor after he became aware of the prior dissolution of the firm, by which the time of payment of the note was extended, would discharge the liability of the outgoing partner, he occupying the relation of surety to his former copartner.
    Motion on behalf of the defendants for judgment upon a verdict directed by the court, the exceptions taken on the trial having been ordered to be heard at the General Term in the first instance.
    The defendants, C. B. Perry and Richard W. Lester, were, prior to February 20, 1874, copartners in business, and were indebted to the plaintiffs at that time.
    On the 20th February, 1874, the defendants, by a written agreement, dissolved said copartnership.

      The note in suit was given on the 7th March, 1874; it was signed by the defendant, C. B. Perry, in the firm name of C. B. Perry & Co.
    The other facts are fully stated in the opinion.

      E&wwrd G. Blade, for the motion.

      JDcmiel 0. Briggs, opposed.
   Davis, P. J.:

The court directed a verdict for the plaintiffs, and ordered the exceptions to be heard in the first instance at the General Term. The defendants excepted to the direction of a verdict, and several other exceptions were taken in the course of the trial. The facts of the case, as they may be fairly gathered from the evidence, were these: Prior to the 20th of February, 1874, the defendants were copartners, doing business under the firm name of C. B. Perry & Co. The firm was indebted to the plaintiffs on an account for goods before then sold ana delivered in the sum of $497.15. The plaintiffs drew upon the defendants’ firm for the amount of such indebtedness. This draft was not honored; but on the sixteenth of March the defendant Perry wrote the plaintiffs, in the firm name, proposing to give the note of the firm for sixty days, for the indebtedness, which proposed note appears to have been given, bearing date March 7,1874, payable sixty days after date for said sum of $497.15, signed in the firm name, but made by the defendant Perry without, so far as the case shows, the knowledge or consent of the defendant Lester. It does not appear that the plaintiffs had, at the time of the making and receiving of this note, any notice of the dissolution of the firm. The agreement, dissolving the firm, was put in evidence. By its terms, the defendant Lester assigned and transferred to the defendant Perry, all his interest in the copartnership business of the firm, and in its property, of every kind whatever; and the defendant Perry agreed to assume “ the payment of all debts and liabilities owing by the firm, and to save Lester, harmless and exonerated, from and against all debts and obligations existing against the firm.” In May following the defendant Perry, being unable to meet the indebtedness of the firm, and his own indebtedness, proposed to his creditors a compromise of fifty per cent, payable in notes at four, six and eight months, satisfactorily indorsed, and an agreement of compromise to that effect was made, which was signed by a large number of the creditors, bnt not by the plaintiffs. Between Perry and the plaintiffs, it was agreed in substance that notes at four, six and eight months, for fifty per cent of their demand, should be made by Perry and indorsed by another party, and that he (Perry) would pay the balance at the end of the year, and give a note to that effect. Those notes were made by Perry, of eighty-five dollars and seventy-six cents each, payable at four, six and eight months, and indorsed by one George IV". Lester, and delivered to the plaintiffs. These notes were taken up by the indorser, at their respective maturity. No note for the balance was given by Perry. The note of March seventh, made in the firm name for the whole amount, was retained by the plaintiffs, and this suit is brought upon that note, against both members of the firm. Some evidence was given tending to show that this note was to have been assigned to the indorser of the fifty per cent notes, and a letter written by plaintiffs was put in evidence, which shows that when George W. Lester, the indorser, sent the fifty per cent notes, he called on the plaintiffs to assign the note of March seventh to him, and they thereupon wrote to O. B. Perry & Co., asking for a note for the additional fifty per cent, so that they could comply with the indorser’s reqiiest. Such note does not appear to have been sent, but Perry testified, in substance, that he wrote to the plaintiffs to return the original note to 0. B. Perry & Oo., or the indorsed notes, neither of which was done; but the indorsed notes appear to have been paid at maturity. Upon this state of facts, the first question raised is, that 0. B. Perry had no authority to give the note dated March 7, 1874, because before that time the partnership had been dissolved, and his authority to give the notes in the firm name had ceased. It is the general rule that after the dissolution of a partnership, neither of the partners can give notes or accept bills so as to bind the other partners, even when it is done for the purpose of providing for a debt due from the former firm. (.National Bank v. Norton, 1 Hill, 572; Lansing v. (Gaine, 2 Johns., 300; Sanford v. Mickles, 4 id., 224; Hackley v. Patrick, 3 id., 537; Walden v. Sherburne, 15 id., 409; Mitchell v. Ostrom, 2 Hill, 520; Lusk v. Smith, 8 Barb., 570; Van Keuren v. Parmelee, 2 N..Y., 525.)

It is insisted, however, on the part of the plaintiffs, that the fact that they had no notice of the dissolution of the partnership at the time the note of the seventh of March was given, takes the case out of the general rule. There is no doubt that where the business is continued by one partner in the firm name, after the dissolution of the firm, or debts are contracted by him with persons who had previous dealings with the firm, all the members of the former firm are liable in the absence of notice of such dissolution. But in this case no new debt was contracted. The note was given for an existing indebtedness, which still remained good against the former firm notwithstanding the making of the note, and the question is purely one of power in the defendant Perry to make the note in the firm name. Both in fact and in law his authority to use that name had wholly ceased.

We think the cases above cited establish that he had no such authority, and that, so far as the note was concerned, it was obligatory only upon himself, and under the provisions of the Code, could be enforced against him notwithstanding the joint liability apparently created by the instrument. The subsequent attempt of Perry to compromise the indebtedness with the plaintiffs, was made with relation to this note of March seventh. At that time they were informed of the dissolution of the partnership, and there seems no reason to doubt but that they knew substantially that the defendant Lester had wholly retired, and that Perry had been and was carrying on business himself and not in the firm name. The plaintiffs are not bound by the compromise agreement signed by the other creditors of the firm. They declined to make that compromise, but made one distinctly for themselves, the substance of which was that they were to have fifty per cent of the indebtedness in the notes of Perry, indorsed by George W. Lester, payable as above stated, and a note for the balance either to be made by Perry himself or by Perry in the name of the firm, payable at the end of one year. The note of March seventh was to have been surrendered and assigned to the indorser, on the performance by Perry of the terms of this special agreement of compromise. The terms were not complied with by Perry, inasmuch as the note for the fifty per cent, payable ' at the end of the year, was not given by him. They had rightfully, therefore, retained the possession of the note of March seventh, but they ■ can maintain no action upon that note as against the defendant Lester; first, because tbe firm name was used in making it without authority; and second, because if Lester was hable upon that note originally, the plaintiffs had postponed its payment with knowledge of the dissolution of the partnership, and probably with knowledge of sufficient facts to show that in relation to the indebtedness, Lester stood as between himself and Perry as a surety.

Their arrangement with Perry, and their acceptance and collection of the notes given under that arrangement, practically extended the time of payment without the consent of the defendant Lester, and to his prejudice. Upon tins latter point the evidence is perhaps not quite clear enough to make it a complete defense, but it seems to us that upon a new trial, facts could be made sufficiently apparent. We are of opinion that, upon the facts fairly to be deduced from the evidence, the plaintiffs were entitled to a verdict against the defendant Perry, for the unpaid half of the note of March seventh, but were not entitled to recover against the defendant Lester. The exception to the direction of a verdict was, therefore, well taken; and the defendants are entitled to a new trial, unless the plaintiffs shall stipulate to enter judgment against the defendant Perry alone, and that the defendant Lester have judgment in his favor, with costs. In which case, new trial denied, neither party to have costs of this motion. Otherwise, if this stipulation be not made by the plaintiffs, new trial granted, with costs to abide the event.

Brady and Daniels, JJ., concurred.

Motion denied, without costs if plaintiff stipulate to enter judgment against the defendant Perry alone, and that defendant Lester have judgment in his favor, with costs. Otherwise, if stipulation be not made by plaintiffs, new trial granted, with costs to abide event.


text:
    MARY L. JAMIESON, Respondent, v. DAVID F. JAMIESON, Appellant.

      Injury to file prn'son — Ord&r of a/rrest — when granted— Code, § 179.
    An action by a wiie for a limited divorce, on account of cruel and inhuman treatment by her husband, is an action for an injury to the person, and an order of arrest can be procured therein under section 179 of the Code.
    Appeal from an order of the Special Term, denying a motion to vacate an order of arrest or reduce the amount of bail.

      A. R. Dyett, for the appellant.

      Rastas 8. Rcmsom, for the respondent.
   Davis, P. J.:

This is an action under the statute, brought by the plaintiff against her husband for a separation from bed and board forever. The statute provides that such separation may be decreed for the following, amongst other causes: First, “ the cruel and inhuman treatment, by the husband, of his wife; ” and second, “ such conduct, on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him.”

The complaint in this action and the affidavit on which the order of arrest is made stand undenied; and they establish the most cruel acts of personal injuries and violence, often repeated, accompanied by threats against the life of the plaintiff, under such circumstances as make it entirely clear that she is entitled to the relief prayed for, to wit, a permanent separation and proper provision for the support of herself and her infant child.

The only question, therefore, is whether the action is one in which an order of arrest can properly be made under the provisions of section 1Y9 of the Code. This question depends upon the construction to be given to the first subdivision of that section. That subdivision provides for an arrest on several causes of action : First, in an action for the recovery of damages on a cause of action, not arising upon contract, where the defendant is not a resident of the State, or is about to remove therefrom; and second, where the action is for an injury to person or character, or for injuring or wrongfully taking, detaining or converting property. The action is not within the first of these classes, because it is not an action for the recovery of damages on the cause of action therein described; and to bring it within the second it is apparent that it must be an action for “ an injury to person,” because it is clearly not one for either of the other wrongs named in such clause.

If it be an action for an injury to person, within the meaning of the séction, there seems to us no difficulty in upholding the order, for in that case the part of section 179 under consideration would be read for the purposes of this motion as though it were in the following words : The defendant may be arrested as hereinafter described * * * where the action is for an injury to person.”

In McIntosh v. McIntosh (12 How., 289), the court said, in substance, that an action for a limited divorce, on the ground of cruel. treatment, is an action for an injury to the person; and it was there held that under the provisions of the Code such a cause of action could not be joined with one for divorce on the ground of adultery. This was following Smith v. Smith (4 Paige, 92), where the chancellor held that those two causes of action could not be united in a bill, of equity. The right of arrest, under section 179, does not depend upon the question whether the action is an equitable or a purely legal one.

Section 2 of the Code defines an action to be an ordinary proceeding in a comt of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; and the word “ action,” wherever used in the Code of Procedure, must be construed with regard to this definition. Within that definition this is very clearly an action for the redress and prevention of a wrong; and the fact that the remedy is to be pursued in an equitable form of procedure, does not change the substance or nature of the action itself, nor does the relief sought for have that effect. The relief in this case must be strictly equitable, but- there is nothing inconsistent between that fact and the fact that the action is for an injury to the person. The cause of action as alleged in the complaint and affidavit, and as required by the statute relating to divorces of this kind, springs out of direct personal injury by the husband of his wife, which must be of such a character as to prove cruel and inhuman treatment, or such conduct on his part as to render it unsafe and improper for her to cohabit with him.

In this case, upon the facts alleged, the acts of the husband were in part criminal assaults and batteries frequently repeated, and which inflicted serious injuries upon the person of the plaintiff. These injuries gave her the right of action for the remedy which she now pursues; and we think her cause of action may be properly described, in the language of the Code, as one for injury to the person. If so, the right to arrest the defendant is given by section 119 of the Code, upon showing that the cause of action exists, in the manner described in another section of the Code.

Under the former system the plaintiff’s remedy must have been pursued by bill in equity; and by showing a state of facts required by the practice in chancery, the plaintiff could have procured the defendant to be arrested and held to bail upon a writ of ne exeat. That remedy still exists in such cases, but does not prevent the use of any other provisional remedy given by the Code. Upon careful consideration, we have concluded, contrary to our first impressions, that the order of arrest in this case can lawfully be upheld. The case, as presented to us, is one in which this remedy should be permitted to be granted, if it can be in any case of this character.

So far as relates to the motion to reduce the amount of bail, we think there was no error in denying the motion. The plaintiff’s property is shown to be entirely personal, consisting of securities of various kinds, and to amount to about $30,000. The relief granted to the wife and child, if the facts which we are now-to assume to be true are satisfactorily established, may not improperly reach an amount equal to the security required on this arrest.

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

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Appointment of a General Guardian of the Person and Estate of EDGAR L. REYNOLDS, an Infant.

      Testamentary guaA'dia/n ■— appointment of, by a mother — duration of guardianship — %B. 8., 150, § 1 — chop. 32 of 1871.
    Tlie appointment by a mother of a testamentary guardian, in pursuance of section 1 of 2 Revised Statutes, 150, as amended by chapter 32 of 1871, operates to prevent the appointment of a guardian upon a petition of the infant, made in pursuance of section 4 of the Revised Statutes, after he has reached the age of fourteen years.
    Where two persons are named in a will as “joint guardians” of the person and estate of a minor and one of them refuses to act, all the rights and powers created by the appointment become vested in the other guardian.
    Where, in the appointment of a guardian in pursuance of chapter 32 of 1871, authorizing such appointment “ during its minority or for any less time,” there are no words indicating the duration of the guardianship, it is to be inferred it was intended to create a guardianship for the whole period of the child’s minority.

      Bedell v. Constable (Vaugh. Rep., 184, 185) not followed.
    Appeal from an order of the Special Term denying a motion to confirm a referee’s report, and for the aj)pointment of a general guardian.

      (Huts. F. Stone and Jolvn F. Porter, for the ajipellant, Edgar L. Reynolds.

      F. More, for the respondent, A. W. Nicoll, general guardian under will.
   Davis, P. J.:

The appellant is an infant of the age of eighteen years. He presented his petition at Special Term for the appointment of a general guardian of his person and estate. The usual reference was ordered under the statute; and from the report of the referee, amongst other things, it appeared that the infant is of the age of eighteen years ; that the father and mother are both deceased; that his father died without appointing any testamentary guardian, but that the last will and testament of his mother, which has been duly admitted to probate, contains tbe following provision: “ I hereby nominate and appoint my friends, Augustus W. Nicboll and Dr. Egbert Guernsey, both of tbe city of New York, my executors and trustees to carry out tbe trusts contained in tbis will, and joint guardians of tbe person and estate of my son, Edgar L. Reynolds.” It also appears that Nicoll, one of tbe guardians named in tbis provision, bad accepted tbe guardianship and entered upon its duties, but that Guernsey, tbe other person named, bad refused to accept tbe same. Upon these facts, tbe court below denied tbe prayer of tbe petition, on tbe ground that tbe infant already bad a testamentary guardian duly appointed by tbe will of bis mother.

Several questions are raised on tbis appeal:

First. Whether tbe appointment of a testamentary guardian by tbe will of tbe mother operates to prevent an appointment on tbe petition of an infant after be has reached tbe age of fourteen years ?

Second. Whether tbe appointment made by tbe will of tbe mother, of tbe two persons named as “ joint guardians of tbe person and estate ” of her son confers tbe powers of guardianship upon one of tbe persons named when tbe other refuses to accept and act; and,

Third. Whether tbe appointment of tbe will is not void, because of its failure to specify any period for which such appointment is made?

Tbe first of these points depends wholly upon tbe construction to be given to tbe Revised Statutes. (2 R. S., 150, § 1, as amended by chapter 32 of tbe Laws of 1871; 1 Sess. L. of 1871, p. 39, chap 32.) Prior to tbe act of 1871, tbe mother of an infant could not appoint a testamentary guardian. (Matter of PLa/rmah M. Pieree, 12 How. Pr., 532.) Section 1 of tbe Revised Statutes, above quoted, provided that “ every father, whether of full age or a minor, of a child likely to be bom, or of any living child under tbe age of twenty-one years and unmarried, may, by bis deed or last will, duly executed, dispose of tbe custody and tuition of such child during its minority, or for any less time, • to any person or persons in possession or remainder.”

Tbe act of 1871 amended tbe section so that it now reads:

“ Section 1. Every father, whether of full age or a minor, of a' child likely to be born, or of any living child, may, by bis deed or last will, duly executed, or in case such, father shall be dead, and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, of every such child, may, by her deed or last will, duly executed, dispose of the custody and tuition of such child during its minority, or for any less time, to any person or persons, in possession or remainder.”

It is manifest that by this section, as amended, the same power of disposition is given to the mother, where the father is dead and has not exercised his right of appointment, that the father himself possessed under the statute before its amendment. But the legislature failed to amend section 4 of the same statutes, entitled “ of guardians and wards,” which provides that if no guardians for any minor child shall have been appointed by the father, by deed or will, such minor, on arriving at the age of fomteen years, may apply, by petition, for the appointment of a guardian to be nominated by himself. It is claimed, on the part of the appellant, that section 4 not having been, amended to conform with the provisions of section 1 as now amended, the appointment made by the mother by her last will can be superseded on the petition of the infant, under this section. If we stand upon the strict letter of the statute, this claim would be well founded; but it seems to us manifest that the intention of the legislature in amending the first section of the statute mentioned, was to change the system thereby created so that the mother’s appointment, under the specified circumstances, should have precisely the same force and effect as an appointment made in conformity to the statute by a father; and that to carry out that intent it is necessary that the court should read the fourth section as though the words or by the mother ” had been interpolated therein by an express enactment. If this b'e not done, the amendment made by the act of 1811 is substantially nullified, and the power given to the mother by that amendment ceases to be of any practical value, for, under the fourth and fifth sections, the minor or his relatives might at any time apply for the appointment of a guardian, notwithstanding the testamentary appointment by the mother, and so the very plain intent of the legislature be wholly defeated.

As to the second point, all testamentary guardianships are trusts, and are not assignable. They are trusts of obligation and duty, not of speculation and profit, and they are at all times subject to the supervision and control of a court of equity. (2 Kent Com., 225, 227, 229.) And where several guardians are appointed by-will, they take whatever estates are given or devised to them in trust as joint tenants, and not as tenants in common. (1 R. S., 727, § 44.) The use of the word joint ” in the will of the mother has no peculiar legal effect, because its omission would have left the tenancy of the guardianship trust in the several persons named, of the same character as that created by its use. It is a well-settled common-law rule that where a devise is made to two persons, and one of them refuses to accept the trust, it is a good devise to the trustee who does accept. (Matter of Stevenson, 3 Paige, 420.) In King v. Downelly (5 Paige, 46) the chancellor lays down the rule that where several persons were named as trustees, and one of them refused to accept and execute the trust, the whole estate will vest in the others-who act, in the same manner as if he were dead or had not been named as trustee. (See, also, Matter of Van Schoonoven, 5 Paige, 559.) The cases cited, it is true, relate to another class of trusts, but we see no sound reason for a distinction between them and the trusts which spring out of the relation of guardianship. The correct conclusion, we think, is, that on the refusal of Dr. Guernsey to accept the guardianship, all the rights and powers created by the appointment became vested in the other guardian named in the will.

In respect to the third point, it is insisted by the appellant’s counsel, that the appointment of the will is void for uncertainty, because it fails to specify any period during which the guai’dianship shall continue. It is plain that the will does fail to specify, m hcee verba, any such period, and the question is, whether that is necessary under our statutes. By the language of the statute the mother is clothed with power to dispose of the custody and tuition of such child “ during its minority, or for any less time; ” and the third section of the statute provides that the guardian shall take the custody and management of the personal estate of the minor, and the profits of his real estate during the time for which such disposition shall have been made. In Bedell v. Constable (Yaugh., 184, 185) it was held that the failure to specify the time rendered the appointment void; but we are not quite willing to adopt the reasoning of that ease. By our statute, power is given to appoint a testamentary guardian during minority, or for any less time. The intention of the testatrix in this case was, undoubtedly, to make an effective appointment. Such appointment under the statute could be made during minority, or for any less time; and the failure to express any less time must, we think, be taken as a clear indication of her intention that the guardianship should extend over the whole minority of the child. The appointment was to become operative at her decease. The period of minority was the limitation of her power, and a guardianship of some kind must by law exist for the whole of that period. If for any reason the testamentary guardianship fails, it is the duty of the coiu-t to intervene and appoint a guardian to whom the custody and tuition shall belong. The correct conclusion, we think, is, that from her omission to specify the “ less time,” it is to be implied that she intended fully to exhaust her power, and create a guardianship for the whole period of the minority. Testamentary guardians are founded,” says Kent, “ on the deed or last will of the father, and they supersede the claims of any other guardian, and extend to the person and real and personal estate of the child, and continue till the child arrives at full age.” (2 Kent Com., 225.)

This, we think, is the general rule; and the exceptions to the operation of this rule are those where the father or mother sees fit to designate a less time, as a limit upon the operation of the appointment. It is strongly urged that circumstances exist making a change of guardians in this case important for the benefit of the infant, but that is a question with which, upon this application, we have nothing to do. The petition is not for a removal of the guardian for any neglect of duty, or because the interest of the infant, for any reason, require it to be done; and the decision upon the petition in this case will have no prejudicial effect upon any future application of that character.

¥e are of opinion that the order of the court below must therefore be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Order affirmed, with costs.


text:
    MATTHEW LYONS, Appellant, v. JOSEPH ROSENTHAL and ADOLPH STRAUSS, Respondents.

      Negligence — when presimed.

    The defendants, who occupied for business purposes the second and upper floors of a building, were hoisting a box, weighing about 500 pounds, to their rooms, by means of iron hooks attached to its sides. Just as it reached the second floor the hooks broke out of the wood, the box fell, breaking through the hatchway on the first floor, and it and its contents struck and injured the plaintiff, who was sitting in the basement. It was conceded that there was no contributory negligence on the part of plaintiff, and that he was lawfully in the cellar. Neld, that the falling of the box raised a presumption of negligence on the part of the defendants, which, in the absence of explanation, would justify the jury in finding in favor of the plaintiff.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action was tried.

      Augustine R. JMJeJMalwn, for tbe appellant.
    Tbe comt erred in charging that negligence on tbe part of tbe defendants could not be presumed or inferred from the circumstances of tbe case. (Byrne v. Boodle, 2 H. & C., 721; Scott v. London Boole Go., 3 id., 596; Briggs v. Otimer, 4 id., 403; Glcure.v. Oily Fat. Ble., 1 Swee., 539; Multin v. Si. Jolvn, 57 N. Y., 567; Roberts v. Jolmson, 58 id., 613 ; Yineett v. Ooole, 6 Sup. Ct. [T. & C.], 562; Kea/rney v. L., ete., R. R., L. R., 5 Q. B., 411; Whar. on Neg., §§ 828, 841, 844; Forris v. Holder, 41 N. Y., 42 ; Add. on Torts [ed. 1876], 514, 515.) When a presumption of negligence has once been established against a defendant, it can only be overthrown by showing that tbe occurrence was tbe result of inevitable accident. (2 Rolle Abr., 548, g / Wearner v. Wa/rd, Hob., 134; S. 0., Moore, 864; Whar. Neg., §§ 114, 127, 128; S. & Redf. on Neg., §§ 5,13, 71; Oenter v. Fi/rmey, 17 Barb., 94.) Proof of tbe general exercise of care and caution does not rebut a presumption of negligence arising in a particular case. (Bwrnell v. F. Y. O. and II. R. R. R. Go., 45 N. Y., 184; Fairfax v. Ld. [Ct. App.], N. Y. Weekly Dig. [Oct. 23,1876], 260.) Impossibility is to be determined by tbe nature of things ; not by the means or ability of a party. (Civil Code, § 777; Aust/i/n v. JH. J. Steamboat Go., 43 N. Y., 75.)

      James JMJ. Smith, for the respondents.
    Upon the question of negligence on the part of the defendants, the plaintiff holds the burden of establishing an affirmative case. {JDeyo v. JH. Y. Gen., 34 N. Y., 9; Holbrook v. TTUea a/nd Sehen. B. JR,. Go., 12 id., 236; Gu/rra/n v. Wa/rren Ma/rmf. Go., 36 id., 153 ; Button v. Hud. B. B. JR. Go., 18 id., 248; Vilas v. Hud. R. R. R. Go., 24 id., 436; Terry v, JH. Y. Gent. R. R. Go., 22 Barb., 474; Gwrram, v. Wcvrren Ghem. JMJam/uf. Go., 36 N. Y., 153.) The request to charge that a box cannot fall through the hatchway without negligence on the part of somebody, was properly refused.
   Davis, P. J.:

This action was brought for an injury sustained by the appellant, by the falling of a box of goods which a servant of the respondents was hoisting up a hatchway into the respondents’ store. The respondents occupied, and carried on the business of merchandise on the second floor of the building, and the other floors above the second. The first floor and basement were occupied by one Yon Blankenstein. The appellant was a truckman, and had delivered goods to Yon Blankenstein, and was in the basement standing or sitting near the clerk’s desk, to receive his pay. The box of goods, weighing about 500 pounds, was being hoisted by iron hooks attached to the sides of the box, and just as it reached the respondents’ floor, the hooks broke out of the wood, and the box fell, broke through the cover of the hatchway on the first floor, and it or its contents fell upon the appellant in the basement below, doing him more or less injury. It was conceded that the appellant was free from contributory negligence. He was where he had a right to be, on Yon Blankenstein’s premises upon his lawful business, when the injury occurred. The judge was requested to charge the jury that the falling of the case raises a presumption of negligence on the part of the defendants, which, in the absence of explanation, would justify the jury in finding against them. The court refused so to charge, and the appellant’s counsel duly excepted.

The appellant was entitled to have this charge made as requested, for upon the facts shown by him a presumption of negligence was raised against the respondents, which they were bound to meet and remove by satisfactory explanations. (Mullin v. St. John, 57 N. Y., 567, and cases there cited.) There undoubtedly must be in such cases, evidence of the alleged negligence of the defendants, but that evidence may, in such a case as this, be sufficiently shown by the presumption which arises upon other facts proved in the ease. There was no doubt, whatever, from the evidence, that the appellant was lawfully on the premises of Yon Blankenstein, and being himself wholly free from any fault or negligence, was injured to some extent by the falling of the box of goods from the respondents’ premises into and upon Yon Blankenstein’s premises. This box was being hoisted up a hatchway by the respondents’ servant, by iron hooks attached to its sides, and it fell because such hooks were not sufficiently or properly attached, or because the box and its contents were too heavy to be safely hoisted in that way, or from some deficiency in the machinery, or fault of the servants.

In Byrne v. Boadle (2 H. & CL, 722), the facts were that an injury was caused by the falling of a barrel into a highway from the window of a shop. In discussing the question of the proprietor’s liability, Pollock, C. B., said: “ There are many accidents upon which no presumption of negligence can arise, but this is not true in all cases. * * * It is the duty of those who keep barrels in a warehouse, to take care that they do not roll out; and I think that such a case would, beyond all doubt, afford prima faoie evidence of negligence.”

In Scott v. London Dock, Oompamy (3 id., 596) the injury was caused by the falling of bags of sugar on the plaintiff as he was passing by a warehouse. The court said: “ There cannot be a recovery without reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

• Many other cases are cited in the opinion of Commissioner Dwight, in Mullin v. St. John {ubi supra), to the same effect. We think there can be no doubt that the plaintiff was entitled to have the instruction asked for, given to the jury. Tbe refusal so to charge, considered in the light of the charge as actually given, must have left upon the jury the impression that it was necessary, in order to make a prima facie case for the appellant, to prove by clear affirmative evidence, that the injury was the result of actual negligence on the part of the defendants, and to deprive him of the benefit of the legal presumption to which he was entitled under the circumstances of this case.

It is not necessary to consider whether the exceptions to evidence taken, during the course of the trial, were well taken or not, as there must be a new trial for the error in refusing to charge as requested.

The judgment must therefore be reversed, and a new trial granted, with costs to abide the event.

Brady and Daniels, JJ., concurred.

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


text:
    CHARLES ROSENTHAL, Appellant v. JACOB H. DESSAU, Respondent.

      Supplemental complaint — when allowed.

    In this action, brought to enforce an alleged stoppage in transitu, tbe defendant, tbe consignee, set up in bis answer that be bad received tbe goods into bis possession, and bad sold them and assigned tbe bill of lading to one Parker and received tbe price thereof. Plaintiff applied for leave to file a supplemental complaint, alleging that defendant bad procured possession of tbe goods by fraud, and being insolvent, bad conspired to defraud tbe plaintiff by a fictitious sale of tbe goods, and that there was no consideration for such sale. Held, that tbe application should have been granted.
    Although tbe right of stoppage in transitu may be defeated by a sale to a third person and an indorsement of tbe bill of lading in good faith, for a valuable consideration, yet an apparent sale, fraudulently made without consideration, for tbe purpose of defeating tbe right, will not have that effect.
    Appeal from an order of the Special Term, denying a motion for leave to file a supplemental complaint, and to amend the summons by bringing in new parties defendant.

      Frederic F. Coudert, for the appellant.

      Fwilcle & Ingleha/rt, for the respondent.
   Davis, P. J.:

The motion was denied below on two grounds : First, that the supposed supplemental complaint set up a new. substantial cause of action; and, second, that the supposed supplemental complaint is not consistent with and in aid of the ease made by the original complaint. The action was brought to enforce an alleged stoppage m trcmsitu, of goods shipped by the plaintiff, from Havre, France, by steamer, to the defendant at New York. The action depended altogether upon the question whether the right of stoppage was exercised before the tromsitus ended, or the right had been terminated by a valid sale of the property.

The defendant, by answer, set up that he had received the merchandise into his possession, and also the bill of lading, and sold . the same to one Parker, and received the purchase-price thereof, and at the same time transferred'the bill of lading to said Parker.

The proposed supplemental complaint alleges, in substance, that before the merchandise mentioned in the original complaint had gone into the possession of the defendant, and while he was insolvent, he colluded and conspired with said Parker and one Backer, to defraud the plaintiff out of said merchandise, by a pretended and fictitious sale to the defendant Parker, for which he received no consideration from said Parker; and that said merchandise, in furtherance of the collusion and conspiracy, was disposed of by said Parker, and the proceeds received by Backer, with the knowledge and consent of the defendant Dessau and Parker, and by him appropriated to his own use, in payment and satisfaction of an alleged indebtedness of the defendant Dessau to Backer; and that these acts were done by the several parties thereto with full knowledge of the insolvency of Dessau and of the non-payment by him foi the said merchandise, and of the fact that said merchandise had been stopped i/n trrcmsitu by the plaintiff, and for the purpose of defraud ing the plaintiff and obtaining unlawful possession of the property.

The right of stoppage m trcmsilu may be defeated by a sale to a third person and an indorsement of the bill of lading, in good faith, and for a valuable consideration (Lickbarrow v. Mason, 2 East, 63); but it will not be defeated by an apparent sale, fraudulently made, without consideration, for the purpose of defeating the right of stoppage. There must be a purchaser for value, without fraud, to defeat such right. (Harris v. Pratt, 17 N. Y., 249.) If the plaintiff has, as he alleges, exercised his right of stoppage before the termination of the trcmsitus and before any tona fide sale for value, his right cannot, of course, be defeated by a fraudulent combination for that purpose, which he now seeks to set up against the defendant Dessau and the persons sought to be brought in as additional defendants. And we see no reason why he may not, for the purpose of maintaining this cause of action, set up in the original complaint, assert all the facts set forth in the proposed supplemental complaint, against all the persons who will be parties to the action when such supplemental complaint has been duly allowed and filed and process properly served. The allegations of the supplemental complaint are very clearly, we think, in aid of the case made by the original complaint for the purpose of overthrowing obstacles interposed by the parties, for the alleged fraudulent purpose of preventing the plaintiff from asserting the right of stoppage. If the plaintiff can succeed he has the right to be in a position to reach either the goods m specie, or the proceeds thereof, in the hands of parties who have received them in fraud of his rights.

We do not agree, therefore, with the learned judge below, that the supplemental complaint sets up a new substantive cause of action, or that it is not consistent with, or in aid of, the case made by the original complaint. While there are facts alleged which might, in and of themselves, be a substantive cause'of action, they • are, nevertheless, in this case, asserted solely for the purpose of aiding the plaintiff to accomplish a complete enforcement of the rights and remedies asserted by his original complaint. We think, therefore, the supplemental complaint ought to have been allowed. The objection that it was not made with proper expedition was not considered in the court below, and we are not disposed to regard it as a fatal objection.

The order should be reversed, with ten dollars costs, besides disbursements, and an order entered granting the motion below on payment of ten dollars costs of opposing same, and fifteen dollars to defendant Dessau, for proceedings after notice and before trial.

Brady, J., concurred.

Present — -Davis, P. <L, Brady and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements; order to be entered granting motion below on payment of ten dollars costs of opposing same, and fifteen dollars costs to defendant Dessau, for proceedings after notice and before trial.


text:
    THEODORUS B. WOOLSEY, Appellant, v. MARY A. BROWN, Impleaded, etc., Respondent.

      Mm'ried women — eonh’aets by — liability created by.

    A married woman, upon an appeal by lier son from a judgment recovered against him, signed an undertaking containing the following clause: “And tlie said Mary A. Brown hereby further undertakes, intends and agrees that the foregoing undertaking shall be a charge upon her separate estate, and hereby does, by said undertaking, charge her separate estate, consisting of a house and lot, No. 36 Water street, in the city of New York, and a house and lot, No. 5 Montague terrace, in the city of Brooklyn, and all other real and personal property owned by her.” In an action upon the undertaking, held, that she was liable thereon.
    Appeal from a judgment in favor of the defendant entered on the verdict of a jury directed by the court, and from an order denying motion for a new trial made on the judge’s minutes.
    The action was brought on an undertaking given on appeal from a judgment, executed by the defendant Mary A. Brown as surety for J ohn W. Brown, her son.

      George V. JB. Bal&wm, for the appellant.

      Estes <& Bcvrnm-d, for the respondent.
   Davis, P. J.:

The plaintiff recovered judgment in this court against one John W. Brown. Brown desiring to appeal to the Court of Appeals, executed the undertaking required by the Code for that purpose, with the respondent, Mary A. Brown, as one of his sureties, which undertaking contained also the following provision :

“And the said Mary A. Brown hereby further undertakes, intends and agrees that the foregoing undertaking shall be a charge upon her separate estate, and hereby does, by said undertaking, charge her separate estate, consisting of a house and lot, No. 36 Water street, in the city of New York, and a house and lot, No. 5 Montague terrace, in the city of Brooklyn, and all other real and personal property owned by her.”

This undertaking was duly acknowledged, delivered and received. The judgment was affirmed by the Court of Appeals, and this action is now bought upon the undertaking. In Yale v. Dederer (22 N. Y., 450) Selden, J., shows to what extent the liability in equity of married women upon their contracts had been made the foot-ball of the English courts of chancery. In that case a married woman had signed a promissory note as mere surety for her husband, with the intention of charging her separate estate, but without expressing such intention, in any form, in the note itself.

The Court of Appeals established the rule of this State to be, that in order to create a charge upon the separate estate of a married woman, the intention to charge the separate estate must be stated in the contract itself; or the contract must be one going to the direct benefit of the .estate.

It seems very clear, both from the reasoning and the decision in that case, that if the note signed by Mrs. Dederer as surety, had expressly charged her separate estate, the recovery against her would have been upheld. In The Corn Exchange Insurance Company v. Babcock (42 N. Y., 613) the action was brought against a married woman upon her indorsement of a note of her husband, which expressed that, for value received, she charged her separate estate with the payment of the note; and it was held not only that she thereby made her separate property liable for such payment, but that such liability could be. enforced by an action and judgment against her, in a like manner as any legal liability might have been. In delivering the opinion of the court, in Maxon v. Scott (55 N. Y., 247, 251), Grover, J., after stating the decision in the case of The Corn Exchange Insurance Company v. Babcock, adds : This case was approved in Canpenter v. O’Dougherty (50 N. Y., 660), and must now be regarded as the established law of the State.” s

In Weir v. Groat (4 Him, 193), the wife had promised as surety for the debt of her husband, and the court held that she was not liable, unless the inteutiou to charge her separate estate was expressed in the contract; Boardman, J., saying : “ The wife may, if she pleases, charge her property with any debt, but it is only when it benefits her estate that the intent to charge it thereon becomes unnecessary. In all other cases, such intent to charge must be a part of the contract. The authorities to sustain these principles are too familiar to need citation.” In Waggoner v. Millington (8 Hun, 142) the defendant had made her promissory note, in the body of which she agreed that the amount should be paid out of her separate estate, and made the same a charge thereon. She set up as a defense that the note was given for a prior indebtedness of her husband in his business, and for his benefit, and that she signed the same without any intention of charging her separate estate, or knowing that she had done so. The court held that she was liable upon the note, notwithstanding her allegation that she had given it as surety for the debts of her husband.

Since the ease of The Manhattan B. and M. Company v. Thompson, in which Church, Ch. J., classifies, with entire distinctness, in what cases, and under what circumstances, the contracts of married women can be enforced against their separate property; there ought to be little room for further dispute. “ It has been held,” he says, “ that such liability may be enforced: First. When created in or about carrying on a trade or business of the wife. (35 Barb., 78; Frecking v. Rolland, 53 N. Y., 422.) Second. Where the contract relates to or is made for the benefit of the separate estate. (Owen v. Cawley, 36 N. Y., 600; Ballin v. Dillaye, 37 id., 36.) Third. When the intention to charge the separate estate is expressed in the instrument or contract by which the liability is created. (Tale v. Dedever, 18 N. Y., 265 ; S. C., 22 id., 450 ; Maxon v. Seottj 55 id., 247.) ”

In that case, the note in suit was made l§y the defendant, and delivered in payment of goods sold and delivered to her husband under a contract made by her tó be responsible for the fulfillment of any contract or obligation made by him. There was nothing in the instrument making her separate estate liable for or chargeable with the payment of such merchandise, and it was held, in effect, that as her liability was that of surety, and as her intention to charge was not expressed in the instrument or contract by which the liability was created, no recovery could be had against her. Three judges, however, dissented from that conclusion. There is nothing in Loomis v. Ruck (56 N. Y., 465) in conflict with the rules laid down, as above quoted, in The Manhattan B. and M. Company v. Thompson.

In that case, the referee found that the contract of the wife was obtained by fraud and duress; and there was no intention in any of the remarks of the learned judge who delivered the opinion, to express views in conflict with those established in the earlier authorities above cited.

■We regard it as settled law that a married woman, though not liable upon a contract in which she is a surety, may yet make her estate liable, if thereby she expressly, as part of the contract, charges her separate estate.

The case at bar is very clearly one in which the respondent intended to make such charge, and expressed her intention in language which admits of no possible doubt. And we see no reason why she - might not become, in that manner, surety upon an undertaking on behalf of her son. The mode in which such liability is enforced is now settled by the Corn Exchange v. Babcock (supra) and Andrews v. Monilaws (8 Hun, 65), and various other cases.

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

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES McKONE, Appellant, v. ANDREW H. GREEN, Comptroller, etc., and ALLAN CAMPBELL, Commissioner, etc., Respondents.

      Oity of New York — bond for execution of contract with- — insufficient sureties — permission of commissioner of public works to substitute other's — when it may be revoked.

    Where a party, desiring to enter into a contract with the city of New York, furnishes with his hid a bond to secure its faithful performance, the sureties to which are decided by the comptroller to be insufficient, whereupon the commissioner of public works consents to the substitution of other sureties in their place, held, that until the comptroller has actually passed upon the sufficiency of the new sureties, the commissioner of public works was authorized to recall and revoke his consent to the substitution of the new sureties.
    Appeal from an order of the Special Term, denying a motion for a peremptory mcmda/tnus.

    In October, 1813, the commissioner of public works advertised for proposals for regulating, etc., Madison avenue, from Ninety-ninth to One Hundred and Fifth streets. The relator was the lowest bidder, and tbe contract was awarded to him ; tbe contract price being about $120,410.
    Tbe original sureties proposed by tbe relator were William Gilfoyle and Robert Prior. Without signing tbe contract tbe commissioner of public works transmitted tbe proposal of tbe relator to tbe comptroller for bis examination of said sureties.
    Tbe comptroller declined to act upon tbe sureties, for tbe reason, among others, that by law tbe property on tbe line of tbe improvement could be assessed for one-half only of its value as fixed by tbe tax department, and, as claimed by tbe comptroller, tbe contract price exceeded one-half tbe value of said property as so fixed.
    Tbe relator thereupon commenced a proceeding in tbe Court of Common Pleas to compel tbe comptroller to act upon tbe sureties. Tbe Special Term refused tbe writ, but on appeal tbe General Term ordered tbe writ to issue, and tbe Court of Appeals affirmed tbe decision of tbe General Term.

      The ease is reported in 50 Howard’s Reports, 500. No opinion was given by the Court of Appeals.
    Subsequently the comptroller, in pursuance of such decision, examined such original sureties, and decided that they were insufficient. The relator then, with the consent of the commissioner of public works, proposed as new sureties, Charles G. "Waterbary and James Deering.
    The comptroller having failed to act upon such substituted sureties, the relator commenced the present proceeding to compel the commissioner of public works to execute the contract, and to accept said Waterbury and Deering as sureties thereon, and to transmit said contract and agreement of said sureties to the comptroller, and to compel the comptroller to approve said sureties, and then transmit the papers to the commissioner of public works.
    The proceeding was commenced by the service of an order to show cause why a mandamus should not issue to the commissioner of public works and the comptroller, requiring them to take the action above mentioned. In such order to show cause, was also embodied an order restraining the comptroller from refusing to approve said sureties, and from transmitting the agreement of said sureties without his approval to the commissioner of public works.
    While the proceeding was pending in court, and some time before it was brought to a hearing, the commissioner of public works reconsidered the question of giving his consent to such substitution of sureties, and addressed a letter to the comptroller, requesting the return of the papers, but the comptroller was unable to comply with such a request on account of the order of the court above mentioned, which restrained Mm from so doing. Before any further action could be taken by the commissioner of public works in reference to the withdrawal of said consent, the relator’s attorney applied for and obtained from his honor, Judge Barrett, an order restraining the commissioner of public works from taldng any steps towards the withdrawal of Ms consent, until after the hearing and determination of the motion for a mandamus.

    The counsel to the corporation thereupon, on an affidavit of the commissioner of public works that he desired to reconsider the matter, and that the work could now be relet for half the price at which MeKone had proposed to do it, obtained an order of the court requiring the relator to show cause why the above-mentioned order, restraining the commissioner of public works, should not be set aside; the court also directed that such last-mentioned order to show cause should be heard before, or at the same time with the original motion for a mandamus.

      James A. Deermg, for the appellant.

      George P. And/t'ews, for the respondents.
   Davis, P. J.:

The court below denied the motion for a peremptory mandamms in this case, for the reasons assigned in the following opinion :

“ Lawrence, J. The point.upon which this case turns is as to the right of the commissioner of public works, after once having consented to the substitution of a surety in the place of a surety originally offered by the bidder, to withdraw such consent before the comptroller has approved of the sureties.
In this case, after a peremptory mamdamms had issued put of the Court of Common Pleas, directing the comptroller to pass upon the adequacy of the relator’s sureties, it was found that both of the original sureties were not adequate, and, thereupon, with the consent of the commissioner of public works, Messrs. Waterbury and Deering were proposed as new sureties by the relator, and this application was then made by the relator for a writ of peremptory ma/ndam/us commanding the comptroller to approve of the adequacy and sufficiency of such sureties, and the commissioner of public works to enter into and execute the contract for regulating and grading, etc., Madison avenue, which is mentioned in the affidavit. By the order to show cause, the comptroller was enjoined, in the meantime, from refusing to approve of the sureties and from transmitting the agreement of the sureties to the commissioner of public works without his approval. By a subsequent order of the court, the commissioner of public works was directed to take no action or proceeding in relation to said contract, it being alleged that the comptroller, in order to avoid the injunction, had requested the commissioner of public works to erase from the relator’s bid certain words, and to withdraw the bid or proposal of the relator from the comptroller’s possession.
“ By an order afterwards made, on the application of the commissioner of public works, through the counsel to the corporation, the relator was directed to show cause why the injunction against the said commissioner should not be vacated. The counsel of the relator contends that after the commissioner of public works has once assented to the change or substitution of sureties he cannot withdraw his assent. I am unable to accede to this view; and I do not think that the cases which counsel has cited sustain his position. The power to consent to such substitution is conferred by the twenty-seventh section, article 2, of chapter 7 of the Revised Ordinances of 1866, which section prescribed: £ That, every contract for supplies or work, etc., * * * shall be accompanied by a bond in the penalty mentioned in the proposals therefor, executed by the persons consenting to become bound as sureties, as provided in section 20, or by such other persons as shall be substituted therefor, with the consent of the heads of departments making such contracts,’ etc.
“No obligation is imposed upon the head of department to give such consent.
“ At the time the relator applied to the commissioner of public works for leave to substitute Messrs. Waterbury and Peering for Messrs. Gilfoyle and Prior, although he was the lowest bidder, he was not the lowest bidder “ who had given security for the faithful performance of his contract in the manner prescribed and required by the ordinance.” Nor had the adequacy and sufficiency of his surety been approved by the comptroller. The relator was, therefore, in default; whether through his own fault or through that of the comptroller, it is not necessary now to determine.'
“ Conceding all that the learned counsel for the relator, in his most elaborate and instructive brief, claims as to the rights of the lowest bidder, whether under the charter of 1873, or the act of 1861, it is clear that the lowest bidder must give adequate security, and that such adequate security must be passed upon and approved by the comptroller before the lowest bidder becomes absolutely and of right entitled to the contract. Now, in this case it appears that after the commissioner of public works has consented to the substitution of the new sureties in the place and stead of the old sureties, and before the approval of the adequacy and sufficiency of the new sureties by the comptroller, the commissioner became desirous of reconsidering his approval of, or consent to such substitution, and, in his affidavit, he states that the reason why he desired so to reconsider his approval was because the work can now be done for $60,000, whereas, if the relator be allowed to execute the same under his bid, the expenditure, exclusive of surveyor’s and engineer’s fees, will amount to $120,000. The consent for the substitution of new sureties for those originally proposed, is an act of grace on the part of the head of the department. It rests upon no new consideration, and it appears to me that if the head of the department becomes satisfied before the act is consummated by the comptroller’s approval of the sureties, that he has acted unwisely or unadvisedly, it should be, and it is, within his power to withdraw his consent. To illustrate : If the position of the learned counsel for the relator is correct, if the commissioner of public works had ascertained within five minutes after he had consented to the substitution of the sureties that they were worthless, he could not have revoked his consent, and the city would have been obliged to enter into the contract unless the comptroller discovered the insolvency or irresponsibility of the sureties and refused to approve of them. I cannot conceive that such is a fair and reasonable interpretation of the provisions of the ordinance.
“ It has been before observed that the cases cited by the learned counsel for the relator, do not apj>ear to sustain the counsel’s position, that the commissioner of public works had no right to recall his consent when once given. Upon examination of those cases, I am of the opinion that it will be found that they were all cases in which third parties, on the faith of the act sought to be undone or revoked, had entered into obligations and agreements into which they otherwise would not have entered.
There the principle of estoppel applies, but in this case the relator contracted no obligations, and he entered into no new contract on the faith of the consent of the commissioner of public works, to the substitution of the new sureties. He had made his bid several years before and his sureties had been determined by the comptroller to be inadequate. When he came before the commissioner of public works asking that new and other sureties might be accepted, he offered no new consideration, and none passed from him to the city.
“ TJpon principle, therefore, and upon the authorities cited, as I understand, I am of the opinion that until the comptroller has actually passed upon the sufficiency of the new sureties, the commissioner of public works was authorized to recall and revoke his consent to the substitution of sureties, as I cannot see that the plaintiff, by such revocation, will lose'any legal rights to which he was entitled at the time the consent was obtained, and as it is apparent that much injury may ensue to those who would be assessed for the work if executed, I reach the conclusion that the order enjoining the commissioner should be vacated.
The motion for a mandamus might, perhaps, be properly denied on the ground that the granting of the writ is much within the discretion of the court, and that regarding the expense to which property owners might be subjected by the execution of the contract in question, it would be a wise exercise of the discretion of the court to refuse the writ and put the relator to his action against the corporation for damages. I prefer, however, to rest this case on the grounds heretofore stated; and as it is apparent that the commissioner desires to reconsider his consent, it follows:
First. That the order restraining him from such reconsideration should be vacated.
“ Second. That no case is made out for granting a mandamus, either to compel the comptroller to approve of the new sureties, or the commissioner of public works to execute the contract.
“ Motion is therefore denied, with ten dollars costs.”

We adopt this opinion as our own, so far as relates to the questions upon which the court below -disposed of the motion.

The writ of mandamus is not a writ of right. It is one over which the court, in the exercise of sound discretion, has full control. In addition to the grounds upon which the learned judge below based his decision, we are of opinion that the writ in this case should be denied, as a proper exercise of judicial discretion: First. Because the relator, if entitled to the contract, has another remedy to recover the damages actually sustained by him by the refusal of the city to enter into the contract; and the measure of the damages which would compensate him in such case would be far less injurious to the city, and especially to the persons on whom the expense of the work would largely be thrown, if the contract were entered into, than to proceed under the changed circumstances to do the work at the heavy prices stipulated in his proposal. The relator should be turned over to his action for.damages.

Second. Because it is extremely doubtful whether there is not such a departure from the ordinance in making up the specifications set forth in the contract, as to render the action of the commissioner of public works unauthorized and illegal. An item, the expense of which cannot of course be ascertained on the face of the papers before us, is included in the estimates and proposal which the ordinance does not embrace and for which the city had no right to contract. This question was not, however, suggested below, nor has it been discussed here, but it arises very plainly upon the papers before us. Certainly no court should be called upon to issue a peremptory mcmdamms, to compel the execution of a contract which, on its face, exceeds the authority conferred by the ordinance of the common council.

We are of opinion that the order of the court below should be affirmed, with ten dollars costs besides disbursements.

Daniels, J., concurred.

Present — Davis, P. L, Beaky and Daniels, JJ

Order affirmed, with ten dollars costs, besides disbursements.