author: Barnard, J. Pratt, J.

text:
    In the Matter of the Petition of The Trustees of the New York & Brooklyn Bridge, Resp’ts, v. The Third Methodist Episcopal Church of Brooklyn, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed March 26, 1892)
    Eminent domain—Award—Interest.
    Interest on an award made in proceedings under chapter 23 of the Code does not begin to run from the date of the commissioners’ report, but-only from the entry of the final order. Although such order may be entered at the same time as the order confirming the report and may be incorporated in the same order, yet a mere order of. confirmation is not the final order contemplated by the Code, and its entry does not fix the date from which interest must be computed.
    Appeal from so much of an order of special term as denies that portion of defendant’s motion asking for interest from the •date of the commissioners’ report.

      Proceedings under chapter 28 of the Code to acquire title to-lands of defendant in the city of Brooklyn. The facts sufficiently appear in the opinion of the special term, as follows;
   Barnard, J.

This proceeding is properly taken by the plaintiff to acquire the lands of the Third Methodist Episcopal Church of the city of Brooklyn, and is under and pursuant to the condemnation law, as provided in chapter 23 of the Code of Civil Procedure. No question is made as to regularity of the proceedings under the statute, including the presentation of the petition, the decision and judgment in favor of the petitioners, the order appointing the commissioners of appraisal, and the report of the commissioners and the confirmation of their report by the order of the court, of date October 24, 1891. - At this stage of the proceedings this motion is made; “ For leave to enter final judgment herein upon the-said report and award, and the order confirming the same, and with interest thereon from the date of said report, to wit, July 24, 1891,” and that the defendant, the church, be subrogated to the rights of the other defendants by reason of having acquired or satisfied their claims set forth in the report. The statute very plainly points out the procedure. By § 3371 it is provided that “ if the report is confirmed the court shall enter a final order in the proceeding, directing that compensation should be made to the owner of the property pursuant to the determination of the commissioners, and that upon payment of such compensation that plaintiff shall be entitled to enter into possession of the property, etc.” Section 3373 provides “ that upon the entry of the final order the same shall be attached to the judgment roll in the proceeding, and the amount directed to be paid, etc., shall be docketed as a judgment against the person who is directed to pay the same, and it shall have all the force and effect of a money judgment in an action in the supreme court.” Section 3374 provides for the abandonment of the proceedings, at the option of the plaintiff, within thirty days after the entry of a final order, and § 3375 pro vid es-for an appeal to the general term from the final order. The plain intent and direction of the statute is that the “final order” shall follow immediately and peremptorily upon the confirmation of the-report. It provides “if the report is confirmed, the court shall enter a final order in the proceeding,” directing compensation pursuant to the determination of the commissioners; and the amount to be paid is to be forthwith docketed, with the force and effect of a money judgment in an action. Although the defendant in the notice of motion herein moves for leave to enter final judgment, herein, it must be considered as a motion for the final order mentioned in § 3371, which is the proper and necessary Order, following immediately upon the order of confirmation of the report, the last previous step in the proceedings. With this brief review of the statute, we can better pass upon the question of interest upon the award raised in the motion papers. Nothing in the statute indicates an intention that the award shall bear interest from the date of the report. The court, on motion to confirm, may confirm it, or may set it aside for irregularity or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient.” Section 8871. Nothing is to be considered as established as to the amount due until after the. confirmation of the report, and then the immediate and. imperative final order directing the payment of the award, and the immediate docketing of the amount of the judgment pursuant to § 3373, and with all the force and effect of a money judgment in an action in the supreme court, “ with interest as an incident of the judgment,” indicate an intent to fix the time when interest is to commence at the docketing of the judgment. Under the general railroad act, in proceedings for condemnation of lands, it was provided that interest upon the award should run, not from the date of the report of the commissioners, but from the date of the order confirming the report. 2 Eev. St. (Banks’ Bros. 7th ed.) p. 1552, § 18. The consideration given for the present statute leads to practically the same result as to the time when interest should begin; for, as we have seen, the confirmation of the report, the final order directing payment, and docketing of the amount as a judgment bearing interest, are, in the intent of the statute, substantially simultaneous. It follows that .the defendant is entitled to the final order directing payment of the award without interest, as it was entitled immediately upon the confirmation of the report. No question seems to be raised by the plaintiff as to subrogating the church to the rights and claims of the other defendants, the tenant and mortgagee, and the order may provide accordingly, although, if required by the plaintiff, the defendant should procure and file satisfactory releases by the mortgagee and tenant of their claims. Let the order be drawn accordingly, without costs to either party.

J. 0. Bergen, for app’lt; W. J. Broo, for resp'ts.

Pratt, J.

The opinion rendered below covers about all the points necessary to a decision at this time.

Nothing need be added to what that opinion holds in the construction of §§ 3371, 3373 and 3374 of the Code.

If the order confirming the report or the final order is to have the force and effect of a money judgment, it follows that it must bear interest from the date of its entry.

There can be no objection to the entry of the final order concurrently with an order confirming the report; in fact, it could be done in one order, but a mere order confirming the report alone would not constitute the final order contemplated by the Code.

It is the entry of the final order that must fix the date from which interest must be computed.

The contention that a jalaintiff may avoid payment of interest by neglecting to enter into possession cannot be sustained either by reason or any proper construction of the statute.

By such a theory the plaintiff could make the defendant become his tenant with the rent fixed at the' amount of interest upon the award.

It is equally absurd and amounts to the same result to hold that as long as the plaintiff neglects to take possession the defendant is liable for rents and profits or a reasonable amount for rent. In no case can the plaintiff in such a proceeding make the defendant, his tenant against his will.

Undoubtedly an- order confirming the report of commissioners-can be made a final order if' it is in proper form, but in this case it was not done, and hence interest did not begin to run.

I do not deem it necessary to discuss the cases cited by the plaintiff’s attorney, as they are not in point.

We think the order appealed from ought to be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Barnard, P. J. Pratt, J.

license: Public Domain

text:
    Joseph Husson, Resp’t, v. Jacob Oppenheimer and Albert I. Sire, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.).
    Bill of particulars—Monet retained for taxes.
    In an action to recover a sum of money retained by the defendant on a. real estate transaction, to indemnify Mm against tax sales appearing on a tax search which was left in his possession, which tax sales are averred to-be invalid, a motion by defendant for a bill of particulars is properly denied.
    Appeal from order denying defendant’s motion for a bill of" particulars. The facts sufficiently appear in the opinion.

      Albert I Sire, for app’lts; Joseph Husson (D. McMahon, of counsel), for resp’t. v'
   Barnard, P. J.

The complaint avers that upon a conveyance by the plaintiff to the defendant of lands in Kings county, there was retained the sum of $450 to indemnify the defendant in case he had to pay some old sales for water rates on the property. That the money was retained in 1886, and that the defendant has never-been called upon to pay the money and has never paid it. That-the sales were illegal and invalid. The complaint avers also that these water taxes were upon the property sold. The papers show that the money was retained on a tax search which defendant producéd. No case is made fora bill of particulars. The deposit of money, the date, the transaction under which it was made, the property on which the tax was supposed to be assessed and the invalidity of the entire taxes and sales under them, make out, if proven on the trial, a good cause of action; and a bill of particulars cannot give any more specific information as to the facts out of which the claim is charged to arise than is given in the complaint.

The order denying the motion shonld therefore be affirmed, with costs and disbursements.

Pratt, J.

This is an appeal from an order denying a motion to-require the plaintiff to furnish a bill of particulars.

There is no merit in the appeal. The complaint set out only one-cause of action, which was for a specific sum of money, $450, deposited with the defendant to indemnify him against certain supposed taxes which defendant claimed were a lien upon certain real estate conveyed to him by the plaintiff, as appeared upon a tax search in possession of the defendant which he retained.

It, therefore, appeared that the defendant knew all about the matter much better than the plaintiff, besides, there was only one item to be proved, to wit, that the $450 was left in defendant’s hands to pay taxes which were never paid as they were no lien, upon the premises.

It is hard to believe that this motion and appeal are for any other purposes than to delay the trial of the case.

If the defendant desires to know what taxes or water rates were referred to in the contract for which the money was deposited, he lias only to look at the tax search in his own possession which he produced at the time of the conveyance and upon which he made his claim for indemnity.

Order affirmed, with costs and disbursements.

Dykmak, J., not sitting.


author: Pratt, J.

text:
    The People, Resp’ts, v. William Nooney, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Bail—Remission of forfeiture—Limitation.
    There is no restriction as to the time when a county court can remit a forfeiture of bail, and it may be done even after judgment on such forfeiture.
    Appeal by Thomas F. Farrell, surety, from order of the county court of Orange county, denying motion to remit the forfeiture of a bail bond on the ground of want of power to do so because of the entry of judgment upon such forfeiture.
    William Hooney was indicted in Orange county, in April, 1890, for assault in the second degree, and Thomas F. Farrell signed his bond as surety for his appearance whenever required for trial. The case was moved for trial May 19, 1890, and on Hooney’s failure to appear the bond was duly forfeited. In June, 3 890, an action was commenced against Farrell on the bail bond in the supreme court, and resulted in the entry of a judgment January 7, 1891, for the sum of $420.10. After the recovery of said judgment Hooney was arrested in Hew York city for another crime committed after the recovery of this judgment, plead guilty, and was there sentenced to imprisonment for a term of years.
    On the second day of February, 1891, a motion was made . on behalf of Farrell in the Orange county court for an order remitting the forfeiture on the bond. The order was refused on the ground that as judgment had been recovered in the supreme court the remission of the forfeiture would be unavailing unless ■default in the action in the supreme court were first opened. A motion was then made in the supreme court before Mr. Justice Barnard to have the default opened, and this motion was denied upon the merits. The motion in the county court was then renewed on the 26th of May, 1891, and resulted in the granting of an order at a subsequent term of the said court denying the motion for want of.jurisdiction, from which order this appeal was taken.

      John W Lyon, for app’lt; M. H. Hirschberg, ¿list, att’y, for resp’ts.
   Pratt, J.

We think the county court ha¿i power to remit the-forfeiture of bail in this case.

There seems to be no limit of time specified in § 597 of the Code of Criminal Procedure; and § 598 seems to imply that it can be remitted after proceedings to enforce the forfeiture have been commenced, as it provides that such a motion can be granted “ only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.”

Beading the two sections together it seems plain that there is no restriction as to time when the county court can make the remission.

Order reversed, with costs, and matter remitted to county court, for rehearing.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J.

text:
    In the Application of John Y. McKane et al., App’lts, for a Mandamus against John L. Voorhies, Com’r, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1893.)

    Towns—Surplus moneys—Laws 1891, Oh. 164—Laws 1883, Oh. 458.
    Chapter 458, Laws 1883, makes full provision for the investment and disposition of moneys received from sales, of the common lands of the town of Gravesend, so that there can he no surplus, and hence the provisions of chapter 164, Laws 1891, do not apply to such moneys in the hands of the town treasurer and commissioner.
    Appeal from order denying application for a mandamus commanding respondent to pay over certain moneys to the relators.

      W. J. Gaynor, for app’lts; H B. Hubbard, for resp’t.
   Dykman, J.

This proceeding was instituted for the procurement of a peremptory writ of mandamus commanding the commissioner of investments of the town of Gravesend to pay over-certain moneys to the relators.

John Y. McKane is the supervisor of the town of Gravesend, and the other petitioners are the justices of the peace of that town, and the defendant John L. Voorhies, is the town clerk, and the commissioner of investments for moneys derived from the sale of lands of the town of Gravesend, pursuant to chapter 458 of the Laws of 1883.

Assuming to act under authority bestowed upon them by chapter 164 of the Laws of 1891, the petitioners met and resolved to expend the sum of $1,000 in the erection of a building for police head-quarters and offices for the board of health, in the town of Gravesend.

In pursuance of that resolution a requisition was made upon the defendant for the said sum of $1,000, and he refused to obey the demand upon the ground that the law of 1891 did not apply to him or to any money in his hands as such commissioner.

Thereupon the petitioners applied to the special term for a wrife of mandamus to compel obedience to their requisition, which was denied, and the petitioners have appealed.

Chapter 164 of the Laws of 1891, from which the petitioners claim to derive their authority for the expenditure of the money in question is as follows: “ The supervisor, town clerk.and justices of the peace, or a majority thereof, in any town of this state, may expend any surplus moneys for which no provision for expenditure is made, belonging to said town, for the purpose of redemption of outstanding bonds or for improvements in said town.”

The appropriation in this case was for an improvement in the town, and so far was justified by the statute, and their application was meritorious if there was in the hands of the defendant sufficient surplus moneys for which no provision for expenditure was made.

Chapter 212 of the laws of 1880 provided for the election of a town treasurer in the town of Gravesend, and § 3 of that act commences as follows: “ Section 3. The moneys in the hands of the

town treasurer arising as aforesaid from the said common lands, shall be expended for the benefit of the town in the order and manner as follows.”

Then there are five sub-divisions prescribing the order and the purposes of the expenditure of the money which exhausts the fund.

Chapter 458 of the Laws of 1883 makes full provision for the investment and disposition of the moneys received from the sales of the common lands of the town of Gravesend, and the provisions of these two statutes make such ample provisions for the expenditure of the money belonging to the town that there can be no surplus.

No moneys have come to the hands of the defendant except those derived from the sales of common lands of the town under the law of 1883, and the interest upon the bonds and mortgages in which such funds have been invested.

This case does not fit the statute of 1891, and the petitioners can derive no aid from its provisions.

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

Barnard, P. J., and Pratt, J., concur.


author: Dvkman, J.

text:
    The People ex rel. William P. Douglas, Resp’t, v. Joseph Dykes et al., Ass’rs of Flushing, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Taxes—Assessment of personal property.
    Where the evidence adduced before the assessors stands uncontradicted and the facts are undisputed, they must base their action upon it and are not at liberty to disregard it. They have no authority to require the personal attendance of a party before them and ignore his proofs because he fails to attend.
    (Barnard, P. J., dissents.)

      . Appeal from order of special term reversing action of the respondents and striking assessment from the roll.

      Benjamin W. Downing, for app’lts; Howard A. Sperry, for resp’t.
   Dvkman, J.

This is a proceeding by certiorari to review the action of the assessors of the town of Flushing, in Queens county, in assessing the relator for personal property.

For the year 1890 they assessed the relator for $30,000 of personal property, and at the proper time his attorney in fact appeared before the assessors and made objection to the assessment, and furnished proof that the debts of the relator exceeded the value of his property.

There was no proof to'the contrary, and no inconsistency in the testimony, and no evidence from which the assessors could infei' any fraudulent effort to escape taxation.

Yet the assessors refused to strike out the assessment, and this proceeding was instituted to reverse their action.

It was decided at the special term that the assessment was ille-' ,gal, and the defendants have appealed from the order made under that decision.

We think the action of the assessors was erroneous, and the •order reversing the same was properly made.

The question involved here has often been presented to the courts of this state, and the result of all the decisions is, that where the evidence adduced before the assessors stands uncontradicted, and the facts are undisputed, they must base their action upon it and are not at liberty to disregard it. The People v. Ferguson, 38 N. Y., 92; The People v. Reddy, 43 Barb., 544; The People v. Howland, 61 id., 284; The People v. Ryan, 88 N. Y., 142.

These defendants possessed no arbitrary or inquisitorial power. They were clothed with no authority to require the personal attendance of the relator before them, and ignore his proofs because ■he failed to attend. The question before them was no.t one which the statute submits to their judgment or of which they can be presumed to have any personal cognizance. On the- contrary, it was a question to be determined by testimony, and in its decision the defendants acted judicially, ana had no authority to arbitrarily disregard the evidence.

It was their duty to deduct the just debts owing by the relator from the value of his taxable personal property, and when the evidence showed that the former was more than the latter, they could make no assessment against him.

The relator was entitled to the benefit of this statutory provision, and the determination of the defendants to assess him for personal property, notwithstanding the evidence he furnished them, was arbitrary and illegal, and the order reversing their action was right and should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., dissents.


author: Barnard, P. J.

text:
    The Farmers’ Loan & Trust Co., Resp’t, v. Egbert C. Wilson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    ¡Landlord and tenant—Termination of authority of agent to collect rent.
    An ordinary agency to collect rents and pay them over is terminated by the death of the principal, and a payment of rent to the agent after that time is not good payment.
    Appeal from judgment in favor of plaintiff, entered upon decision of the court without a jury.
    Action for rent

      Hugo Hirsh, for app’lt; Herbet B. Turner, for resp’t.
   Barnard, P. J.

William Maden in his lifetime was the owner of tenements Nos. 290 and 292 Fulton street, in the city of Brooklyn. The owner gave authority verbally to D. M. Corbett to rent the property. Corbett, in April, 1884, rented the property to the defendant for an annual rent of $3,500 payable monthly in advance. William Maden died in Cuba, in August, 1884, leaving a will by which he devised the property to certain infants for whom the plaintiff is guardian. Corbett continued to collect the rents after Maden’s death, and the defendant paid the rent in ignorance of the fact that the owner was dead. The question presented is whether or not the payments made to Corbett after Maden’s death are good. The general rule is that an agency is revoked by the death of the principal. This rule has been before the court of appeals in the case of Weber v. Bridgman, 113 N. Y., 604; 23 St. Rep., 674, and upheld. The court says that there can be no agent when there is no principal, and that to legalize a payment made to an agent after the principal’s death, the agent must have an interest independent of the principal and not destroyed by his death. No such standing upon the part of the agent is disclosed. He was a mere agent to receive rents and pay them over; and while he may be assumed to have been entitled to a commission upon the collection, it is not to be - doubted but that the principal had full power to terminate the agency against the agent’s wishes, at any time. No proof is given that the agent had made any repairs or had paid any taxes, which he was entitled to be paid out of the rents.' The case seems to show an ordinary agency to collect rents and pay them over to the principal.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    James Robertson, App’lt, v. Mrs. Smith Caskey, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Married women—Not liable for goods sold to husband.
    In an action against a widow for coal furnished before her husband’s, death it appeared that the index to the account in plaintiff’s books was in the name of the husband, and all the bills .rendered were in his name. The justice rendered-judgment for plaintiff," which was reversed by the-county court. Meld, no error.

      Appeal from judgment of the county court of Orange county, reversing judgment of justice’s court.
    Action for coal sold and delivered; defense, denial. It appeared that the account on plaintiff’s books was indexed in the name of defendant’s husband, who has since died, and all the bills were made out in his name. At the top of the ledger page appears the name “ Mrs. Smith Caskey."

      Wilton Bennet, for app’lt; Amos Van Etten, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice ■of the peace for the recovery of a bill of seventeen dollars and twenty cents for coal sold and delivered. ■ The defendant is the widow of Smith Caskey, who died after the sale and delivery of the coal in question.

The cause was tried in the justice’s court before a jury and a verdict was rendered for the plaintiff. From .the judgment entered upon that verdict the defendant appealed to the county court of Orange county, where the judgment was reversed, and from that judgment of reversal the plaintiff has appealed to this court.

The judgment of the county court was right. The credit for the coal was given to the husband of the defendant, and no reason appears in the case for charging her with its payment.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Henry Spruck, Resp’t, v. Hugh McRoberts, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    .1. Mechanic’s lien—Consent on owner.
    The consent of the owner of land to the erection of a building thereon may be implied from his knowledge of its commencement, and his silence and failure to object may be deemed sufficient evidence of consent.
    Same—Notice.
    Plaintiff erected a building under a contract with T., who had wrongfully deprived this defendant of the land, and from which T. was afterward ejected. Before taking the contract he had been told that the land belonged to the defendant, and warned not to do the work or he would get stuck. Held, that the only hazard assumed by plaintiff in disregarding such notice was the risk of placing a building on the land of defendant without his assent.
    Appeal from judgment in favor of plaintiff in an action to foreclose a mechanic's lien.

      Wm. M. Mullen, for app’lt-; Oscar Frisbie, for resp’t.
   Dykman, J.

This is an action for the foreclosure of a mechanic’s lien. It has been tried before a referee, who found all the facts in favor of the plaintiff, and the appeal is from the judgment entered upon his report.

The claim of the plaintiff is for the erection of a building under a contract in writing made by him with George Tartter and Catharine Tartter, and they are named and described in the notice -of lien as the owners against whose interests a lien is claimed.

The land upon which the building was erected belonged to Hugh McEoberts, and he also defended this action and appealed: from the judgment. He had been wrongfully deprived of the-1 possession of his land by Tartter and wife, who were in the actual possession at the time of the making of the contract with the plaintiff, and so continued until McEoberts recovered the same under a judgment in an action of ejectment.

But two material questions arise for determination upon this appeal.

The first has reference to the omission of the name of McEoberts from the notice of lien filed by the plaintiff, and that seems to be determined by the provision in the fourth section of the act under which the lien was filed, that “ the failure to state the name of the true owner * * * shall not impair the validity of the lien.” -Chapter 342, Laws of 1885, § 4; Schmalz v. Mead, 125 N. Y., 193; 34 St. Rep., 779.

The chief objection of the_ appellant is that the building was erected upon his land without his knowledge or consent, when, the possession was wrongfully withheld from him by the persons who made the contract with the plaintiff.

Upon this question the referee found that the appellant knew the plaintiff was erecting the building upon his land and consented to the performance of the work and furnishing of the materials by the plaintiff in the erection of the building.

That finding was not based upon proof of actual consent by the appellant, but upon evidence that he became aware of the erection of the building soon after its commencement and saw it in course of construction from time to time until its completion, without making any objection or giving any notice to the plaintiff of his ownership of the property.

Such silence of the appellant was construed by the referee into an implied assent to the work which he saw progressing, because equity and fair dealing required him to give notice of his rights and intentions in the premises, and state his objections, if any he had, to the construction of the edifice, instead of standing by in silence and permitting the plaintiff to expend money upon his property from which he might reap a benefit without compensation.

These actions to foreclose mechanic’s liens are not based upon contract so far as the validity of the lien is concerned, and proof ■of the consent of the owner to the performance of the work ox the furnishing of materials in the construction of a building upon his land is sufficient for the acquisition of the lien. Chap. 842. Laws 1885, § 1.

It is not necessary to prove a contract of the owner, neither is it essential to establish his consent by direct evidence. If his consent was manifested in any way to the building of the house it is sufficient.

That rule is now well established in this state and is founded upon the principle that one who knowingly takes the benefit of the "labor or expenditure of another in the improvement of his land ought to have the land subject to a lien for the value thereof.

The doctrine has been applied in cases where buildings have been erected upon the land of married women, under contracts with their husbands, the women simply knowing of them, and permitting them. In such and similar cases it has been held that such consent authorized the lien. Nellis v. Bellinger, 6 Hun, 560; Otis v. Dodd, 90 N. Y., 340 ; Husted v. Mathes, 77 id., 388; Burkitt v. Harper, 79 id., 273.

Our conclusion, therefore, is that the consent of the appellant to the erection of the building may be implied from his knowledge of its commencement and that his silence and failure to object may be deemed sufficient evidence of consent.

The appellant made an effort to avoid the effect of his knowledge and implied consent by proof that the plaintiff was notified of his danger, and failed to institute inquiry or profit by the warning.

We think, however, that r the appellant can derive no benefit from the warning given to the plaiiitiff. Not, however, because the notice was unauthorized, because that is immaterial. . It was a notice whether it was authorized or voluntary.

The reason is this : The only hazard assumed by the plaint-

iff in disregarding such notice was the risk of placing a building upon the land of the appellant without his assent, and now that such assent is established the risk has wrought no mischief.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Christian F. G. Myers et al., App’lts., v. Frances E. Herbert, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Supplementary proceedings—Abandonment.
    The judgment creditor in November, 1887, obtained an adjournment of the examination to a future day in that month which was not fixed. Nothing further was done until April, 1891, when a new order was obtained. Meld, that the failure for so long a time to reinstate the hearing or apply for a receiver must be deemed an abandonment of the proceedings.
    3. Same—Contempt.
    Where the judgment debtor, a married woman, was abandoned by her husband after the examination, and became destitute and dependent on her mother, it is not contempt for her to sell her jewelry after the proceedings had been so long dormant.
    Appeal from order denying motion to punish defendant for contempt in violating the injunction clause of an order in supplementary proceedings.

      M. Olelland Mtlnor,, for app’lts; Carrington & Emerson, for resp’t.
   Barnard, P. J.

The judgment in this case was obtained in February, 1887. In October, 1887, the defendant was examined under proceedings supplementary to execution. Her examination was completed on the 2d of November, 1887. An adjournment was taken to November 12, 1887, for the examination of witnesses. On that day the judgment creditor (plaintiffs) obtained a further postponement to a future day in November, 1887, which was not fixed The supplemental order contained the usual injunction against a disposition of her property by the judgment debtor. After the 12th of November, 1887, there was no further hearing under the order of 1887. In April, 1891, the plaintiffs obtained a new order for the examination of the judgment debtor. It appeared that the debtor had disposed of certain property she had at the examination of 1887 to her mother for value; the consideration being money advanced by defendant’s mother to her to a greater amount than the value of the property sold, being the jewelry of the defendant. The transfer was made April 1, 1891, after the defendant was informed that the plaintiffs claimed that Judge Pratt’s order was still in force, and before the new order was obtained from Judge Cullen. There was no contempt of Judge Pratt’s order proven. The plaintiffs never applied for a receiver or for an order for the delivery of the property to the creditor. Some three and a half years had elapsed since the close of the examination. When informed by the plaintiffs’ attorneys that they claimed Judge Pratt’s order against assignment of property was still in 'force, the defendant consulted a lawyer of high character for learning, and was informecl that the proceedings were abandoned and that the injunction order terminated with the abandonment. The defendant had no lawyer to represent her on the examination under Judge Pratt’s order. The failure for so long a time to reinstate the hearing or to apply for a receiver must be deemed an abandonment of the proceedings. The property consisted, as we have seen, of the personal ornaments of the defendant. Soon after the examination her husband abandoned her and she became destitute and dependent upon her mother. It was not a contempt, under the circumstances, for her to sell her jewelry after the proceedings had been so long dormant.

Order affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Elise Enk, Resp’t, v. The Brooklyn City R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Negligence—Railroad—Contributory.
    Plaintiff’s testator, with his wife and child, endeavored to take a car of defendant’s train at a point where trains stopped only on signal. The railroad was a single track with switches, and was operated by dummy engines. The train passed them and ran on a switch to allow another train to pass. The wife and child crossed the main track and boarded the train, but as testator was crossing diagonally the passing train struck and killed him. No disarrangement or disorder of the road was shown, and it appeared that deceased could have seen the train if he had looked, and that the engineer used every means to stop the train as soon as he saw the deceased. Held, that the deceased was guilty of contributory negligence, and that the complaint should have been dismissed.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

      Thomas S. Moore, for app’lt; Julius Klamke {A. H. Bailey and J. B. Bell, of counsel), for resp’t.
   Dykman, J.

This is an action for the recovery of damages resulting from the death of August Énk, caused by the negligence-of the defendant. The cause was tried at the circuit before a, jury, and a verdict was rendered in favor of the plaintiff, and from the judgment entered upon that verdict, and from the order denying a motion for a new trial on the minutes of the court, the defendant has appealed.

The defendant operates a single track railroad upon Cypress-avenue, in Queens county, some distance beyond the limits of the city of Brooklyn, by dummy engines, and at intervals along the road there are sidings or turnouts to permit the passage of trains.

Cypress avenue, where this accident occurred, is an ordinary country road, and the trains of the defendant stop on signals for passengers.

About half-past eight o’clock in the evening of his death the-deceased left a'saloon near Austin’s Station, on the avenue, with his wife and child, intending to take a train upon the defendant’s road for Brooklyn.

As they were walking along the side of the track, a train passed them, and he raised his hand as a signal for it to estop. It was going towards Brooklyn, but instead of stopping it proceeded a short distance and run onto a siding to permit another train to-pass, which was then coming from the city of Brooklyn.

His wife and child continued on and crossed the main track and boarded the standing train in safety. He undertook to cross-the main track diagonally and was struck by the passing train and instantly killed.

There is no proof of any disarrangement or disorder on the railroad. The place where the deceased met his death was neither-a crossing nor a station, and he was not a passenger. The company owed him no especial duty, and there is no proof of negligence or carelessness in the operation of either of the trains.

The train which struck the deceased had the right to pass the other where it did, and the siding was made for that purpose. The train had just left a crossing and was moving at a moderate rate of speed. It was furnished with a head-light, and as soon as the-engineer saw the deceased he used every means to stop the train and did arrest the speed almost instantly.

We find no testimony in the case sufficient to charge the defendant with negligence.

On the other hand, we find proof of heedlessness and inconsideration on the part of the deceased. He evidently ran against the engine when he could have seen the headlight by looking, because the engineer of the down train ran out on the siding because he -saw the up train which struck the deceased three blocks away and his train was upon the siding when the deceased was killed. If he had looked toward the approaching train he would have seen it, for his vision in that direction was unobstructed for a thousand feet.

There was no obligation to sound a bell or whistle. Neither ‘train was at a crossing or station. One had retired to a side track to allow the other to pass and the other was passing, and both were orderly and regular.

We think the motion to dismiss the complaint should have been granted and that the judgment and order denying a motion for a new trial must be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


text:
    The Merchants’ National Bank of Gardner, Me., Resp’t, v. John Clark et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Bills and notes—Addition of official title to signature.
    Negotiable paper may be executed by an agent or an officer, but. the name of the principal must appear on the paper, and the mere addition of the official title of the agent or officer is only a personal description and is insufficient of itself to constitute an exemption from personal responsibility. The mere fact that the name of the principal appears in the margin of the note is not sufficient.
    2. Banks—Notice to officer.
    Where notice or information is received by an officer of a bank in his official capacity the bank is presumed to have it; otherwise it is received as a private individual and that is insufficient to charge the bank with notice.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Henry Daily, Jr., (Geo. G. Reynolds, of counsel), for app’lts; Edward B. Merrill, for resp’t.
   Dykman, J.

This is an action upon two promissory notes in this following form:

1 $5,000. Brooklyn, N. Y, Sept. 1, 1890.
Ridgewood f Three months after date we promise to pay to the
Ice Co. f order of Clark and Chaplin Ice Co. Five Thousand J Dollars at Mechanic’s Bank. Value received.
E. H. Close, Treas.
John Clark, Pres't.

The other note is precisely like this.

Clark was the president of the Ridgewood Ice Company and Close was its treasurer, and they were clothed with power to issue commercial paper for the corporation, and these notes seem to have been made in the usual course of business. They were forwarded to the payee, and by it endorsed over to the plaintiff.

The cause was tried at the circuit where a verdict was directed for the plaintiff for the full amount of both notes, and the defendants, Clark and Close, have appealed from the judgment entered upon that verdict.

The action is defended by them upon the theory that the notes are the obligations of the company of which they were officers and not their individual paper, and we are to ascertain whether their defense is meritorious.

Whether the contract evidenced by the notes is obligatory upon the defendants personally or upon the company whose officers they are depends upon the interpretation to be placed upon the instruments.

If, as we must assume, these appellants intended to execute valid instruments which would be obligatory upon the maker, it was very necessary for them if they desired to avoid personal liability to use plain words to denote such purpose.

Preliminarily it may be remarked that a liberal construction is ordinarily adopted in the interpretation of commercial instruments, and if from such an exposition it can be reasonábly concluded that the intention was to bind the principal and not the agent, the courts will adopt that construction. Story on Promissory Notes, § 69.

Let us now see what intention is expressed by these instruments. In the first place, the name of the Ridgeway Ice Company is not contained in the body of the notes, and the name of the company printed in the margin is no part of the notes. Neither did the appellants undertake to sign for this company or to bind it in any way. They say in the notes: “We promise to pay," and sign their individual names, with the addition "of their official designation. Thus, there is the entire absence of any language indicative of an intention to charge their company or exempt themselves from personal liability.

If an agent desires and intends to bind a principal he must contract in his name, and that is the cardinal rule which must control this appeal, for there is nothing in the body of these notes or in the manner in which they are executed indicative of an intention to exempt themselves from liability.

The security of the holder of commercial paper must always appear upon the face of the bill. Makers and endorsers, acceptors and drawers, are liable in the order of their names, but they are responsible only because they have executed the instrument Any other rule would launch the commercial world upon a sea of uncertainty. We do not intend to say that negotiable paper must be signed by a party personally. It may be executed by an agent or an officer, but the name of the principal must appear in the paper, and the mere addition of the official title of the agént or officer is only a personal description, and is insufficient of itself to constitute an exemption from personal responsibility.

The foregoing observations are sustained by the following authorities : Moss v. Livingston, 4 N. Y., 208; Dewitt v. Walter, 9 id., 571; Stone v. Wood, 7 Cowen, 453 ; Pentz v. Stanton, 10 Wend., 271; Taft v. Brewster, 9 Johns., 333.

If there are decisions which seem to form an exception to the general rule they will be found in cases where the name of the principal appeared upon the instrument and the court in pursuance of the inclinations we have noticed above has adopted a liberal construction to deduce an intention to bind the principal and not the agent. There remains however another question for examination.

In the answer of these appellants they say their company was incorporated and had a contract with the Clark & Chaplin Ice Company for ice, and that these notes were made by them in the usual course of business for the benefit of the company in payment for the ice furnished under such contract and that the plaintiff had knowledge of such facts, and the proof of those allegations in the answer would constitute a valid defense to this action. Bank of Genesee v. Patchin Bank, 19 N. Y., 312.

The payee in these notes could not recover upon them against these defendants because it was in full possession of all the facts and had notice that they were made for the company in payment for its liability by its officers with ample authority in the usual course of its business. The plaintiff, however, claims to recover as an innocent holder for value without notice, and it was competent for the defendants to disprove its innocence by proof of notice, and they made an effort in that direction upon the trial by asking this question of the defendant when he was under examination as a witness: “ Before the commencement of this suit had you conversation with Mr. Dennis, the president of the plaintiff, with regard to these notes, in which he told you that at the time the bank received these notes they knew that they were notes of the Ridgewood Ice Company and given upon this contract. Defendant’s exhibit 3. Objected to. The Court: It is sustained on the ground that the declarations of the president are not competent evidence against the bank. Defendants except.”

This question called for nothing but knowledge acquired by the president as a private person, and that was insufficient to charge the bank with notice where notice or information is received by an officer of a bank in his official capacity, the bank is presumed to have it, otherwise it is received as a private individual. Atlantic State Bank v. Savery, 18 Hun, 36; aff’d, 82 N. Y., 291.

The exception, therefore, presents no error.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Catherine C. Ferris, Resp’t, v. Mary C. D. Fisher, App’lt.

      (.Supreme Court, General Term,, Second Department,

      Filed May 9, 1892.)

    Trial—Adjourhmeut.
    When the case was called defendant was not ready and moved to p.:t the case over the term, but the motion was denied, as no ca-e was made for it, but an adjournment for a week was granted on suggestion of settlement. On the adjourned day one of defendant’s counsel stated that his associate was engaged elsewhere and asked that the case go over the term, and refused to consent to an adjournment during the term. The absence of no witnesses was shown. Counsel had tried another case between the parties involving the same questions. Held, that the application to put over the term was without merit and to secure delay, and that it was properly denied.
    Appeal from order denying motion to open a default.

      M. J. Keogh and L. 0. & W. P. Platt, for app’lt; Wilson Brown, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motian to open a default taken against the defendant at the circuit court in Westchester county on the 12th day of October, 1891.

From the affidavits used on the motion we collect the following facts:

The action is brought for the partition or sale of real property, and was upon the calendar of causes to be tried at the circuit in Westchester county which commenced on the first Monday of October, 1891, which was the 5th day of the month.

When the cause was called on the first day of the court the defendant was not ready, but presented no legal excuse for her failure to prepare and be in readiness for the trial.

The application to postpone the trial until the next term of the circuit was denied because no case was made for such adjournment.

Upon a statement that all the witnesses were in the immediate vicinity of the court-house, the cause was set down for trial at two o’clock that afternoon.

When the court assembled at two o’clock there was a suggestion that the parties would settle the case amicably between themselves and an adjournment was taken for one week, until the following Monday, the 12th day of October.

On the 12th one of the counsel for the defendant appeared in court and stated that his associate was engaged in Hew York city; that no settlement had been concluded, and asked to have the cause go over the circuit.

Thereupon the trial judge stated that it was apparent that no effort had been made to prepare for the trial, but if they had been embarrassed by the negotiations for a settlement hp would postpone the trial for one week to afford the defendant an opportunity to procure the attendance of thoir witnesses, and prepare for the trial.

Thereupon the counsel stated that his application was to postpone until the next term and he did not desire an adjournment during the term, and when the trial judge inquired of him if the defendant declined to take, any day during the term if the day he proposed was inconvenient, he answered in the affirmative and desired to file his affidavit, and declined to consent to any adjournment during the term.

He then stated the contents of his affidavit, and as they contained no reason for the adjournment beyond what had been offered the application was denied, and the cause was tried on an inquest, and judgment was rendered in favor of the plaintiff.

It appears further that the counsel for the defendant have tried another action between these parties involving the same questions as those to be determined in this case, and have been engaged before the surrogate in a controversy over the same will which the plaintiff here claims to be invalid, so that they are familiar with the case and require no time for preparation.

They subpoenaed no witnesses and made no pretense that any were absent or beyond their reach or unable to attend, or that there were any whose attendance they could not procure. Their application for an adjournment until the next term was plainly without merit and made to secure delay, and their professions of inability to proceed with the trial were insincere and destitute of good faith.

The motion to open the default was properly denied, and the order should be affirmed, with ten dollars costs and disbursements, to be deducted by the referee and paid out of the portion of the defendants of the proceeds of the sales of the property involved in this action.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Bykman, J.

text:
    Evelyn Jackson et al., Overseers, etc., App’lts, v. Herman Sandman, Resp’t. Evelyn Jackson et al., Resp’ts, v. Manuel Claudio, App’lt. Evelyn Jackson et al., App’lts, v. Peter De Grief, Resp't. Evelyn Jackson et al., App’lts, v. Clement McMillan, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Excise—Evidence.
    In a prosecution for a violation of the excise law evidence of conversations with the overseer of the poor, in the absence of the defendant, in which the overseer said he was satisfied of defendant’s guilt, is inadmissible.

      2. Same—Jurors.
    Members of a law and order league, who have contributed to a fund for the prosecution of violations of the excise law and to procure evidence thereof, are parties in interest in such prosecutions, and, therefore, are disqualified to sit as jurors.
    Appeals from judgments of the county court of Suffolk county, reversing judgments recovered by plaintiffs before a justice of the peace, except in the case of Claudio, in which the judgment was modified as to amount of recovery.

      George F. Siackpole, for pl’ffsF. A. Carpenter (21 M. Griffing, of counsel), for def’ts.
   Bykman, J.

These four actions were commenced in a court of a justice of the peace by the plaintiffs, as overseers of the poor of the town of Southold, to recover penalties against the defendants for a violation of the excise law of the state of Hew York by the sale of strong and spirituous liquors in quantities less than five gallons at a time without a license therefor.

The causes were all tried before the justice and a jury, and a verdict was rendered in each case in favor of the plaintiffs.

From the judgments entered upon such verdicts the defendants appealed to the county court- of Suffolk county, where the judgments were all reversed.

From the judgments in the county court the plaintiffs have appealed to this court.

The judgment against Henry Sandman was reversed for the erroneous admission of the testimony of the witness Stackpole, who testified to a conversation between himself and one of the plaintiffs in the absence of the defendant. That testimony was inadmissible, and we cannot say it was harmless, and had no influence with the jury.

The only witnesses who testified to the sale of spirituous liquors by the defendant were two men who were hired to procure testimony against the defendant and others. They were paid for the evidence they gave, and such testimony is regarded with grave suspicion by courts and juries. The independent witnesses called by the plaintiffs failed to prove any offense, and the jury might have disbelieved the two paid witnesses.

Under such circumstances the proof that the overseer of the poor of the town said he was satisfied of the guilt of the defendant may well have had influence with the jury sufficient to turn the scale and induce the verdict.

We think the judgment was properly reversed, and the judgment of the county court should b.e affirmed, with costs.

In the case of Manuel Claudio we cannot concur with the decision of the county court.

The admission of the testimony of James H. Young was erroneous. It amounted to a declaration that evidence had been secured against the defendant to prove a violation of the excise laws, and may well have affected the result.

Moreover, the challenges to the jurors, Charles T. Brooks, Henry C. Tuthill and William-H. Tuthill, were improperly overruled. They were parties in interest in the action, having contributed money for its prosecution and for the procurement of testimony to establish the offense.

We cannot disregard these errors and improprieties. The offense charged against the defendant is odious, and harmful to society, and he entered upon the trial with sufficient odium and prejudice against him without the imposition of a partial and prejudiced jury. Like all persons charged with an offense he was entitled to a fair trial in conformity with law. He was to be convicted by legal evidence addressed to an impartial court and jury, and if that machinery was insufficient for his conviction he had a right to acquittal.

The judgment of the county court and of the court of the justice of the peace should be reversed, with costs.

In the action against Peter Be Grief we agree with the county court. The admission of the testimony of James H. Young was erroneous, and so was the overruling of the challenge to the juror, Charles Robinson.

In the action against Clement McMillan the county court reversed the judgment of the court bqlow, and the plaintiffs appealed to this court.

We agree with the county court for the reasons stated in the case of Manuel Claudio, the challenges to the jurors, Joseph A. Clark and William Griffing, resting upon the same grounds as those to the jurors in that case; they had furnished money for the prosecution of this and other actions and were ready and intended to contribute more. If the plaintiffs sustained defeat in the suit these jurors were to assist in paying the costs, and so they had a pecuniary interest in the result of the actions. Their interests were the same as those of the plaintiffs, and differed only in degree.

It is a fundamental principle prevalent in the administration of justice that no man can be a judge in his own case or where he has a pecuniary interest, and the rulings of the justice which permitted these two men to sit as jurors after their interest was disclosed was violative of that cardinal and unyielding rule.

It may be unfortunate that these prosecutions, which were doubtless inspired'by a commendable solicitude for the welfare of the public, and the abatement of a serious local evil, have miscarried and failed in consequence of a departure from the beaten way of procedure in the trial of actions under our system of jurisprudence. But the errors are fatal and cannot be disregarded.

The judgment of the county court in this action should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concur.


author: Pryor, J.

text:
    The East River Electric Light Company, Resp’t, v. Francis A. Clark, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Pleading—Corporations.
    An allegation in an answer that defendant “has no knowledge or information sufficient to form a belief as to plaintiff being a domestic corporation,” raises no issue on that point and dispenses with proof of plaintiff's incorporation.
    8. Same—Denial.
    A statement in an answer of a condition of fact inconsistent with the averments of the complaint, is not equivalent to a general denial, so as to defeat an admission of the allegations of the complaint.
    8. Same—Contract.
    In an action upon contract the answer contained no denial, but set up a different contract under which a less sum was due, for which judgment was offered. Held, that the cause of action sued upon was confessed by non-denial, and was not open to traverse or contrary proof on the trial.
    4. Same.
    In such case the mere allegation in the answer that defendant was indebted in a certain sum and no more on the contract which he set up, is no qualitication of his admission that he was owing a larger sum on the contract alleged in the complaint.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff on the pleadings.

      Michael J. Kelly, for resp’t; Samuel L6beniha.ll, for app’lt.
   Pryor, J.

The appeal being from the judgment only, we have no jurisdiction to review the facts. But, as judgment was directed on the pleadings, there is, in truth, no question of fact in controversy; and the only point for adjudication is, whether the answer raised any issue for trial.

1. The complaint contains the averment that the plaintiff was and is “ a domestic corporation,” etc. The answer alleges merely that the defendant “ has no knowledge or information sufficient to form a belief as to the plaintiff being a domestic corporation.” As a general rule of pleading under the Code, it is a sufficient denial to aver that the defendant “ has no knowledge or information sufficient to form a belief ” as to the fact traversed; but the rule is qualified by § 1776, which provides that “in an action brought by a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified and contains an affirmative allegation that the plaintiff is not a corporation.” Plainly, the answer here dispensed with proof of Slaintiff’s incorporation. Platt, etc., Refining Co. v. Hepworth, 13 Civ. Pro., 122.

2. 'The complaint alleged a specific agreement, and that under it the sum became due for which judgment is recovered. The answer does not deny that agreement, but sets up another and different agreement, under which a less sum is due, and, for that sum makes an offer of judgment.. By the Code (§ 500) an answer must consist of a general or specific denial of each material allegation of the complaint; or a statement of new matter constituting a defense or counterclaim. A statement in an answer of a condition of fact inconsistent with the averments of the complaint is not equivalent to a general denial, so as to defeat an admission of the allegations in the complaint. Wood v. Whiting, 21 Barb., 190; West v. The Bank, 44 id., 176; Powers v. R. R. Co., 3 Hun, 285, 286; Swinburne v. Stockwell, 58 How., 312; Marston v. Swett, 66 N. Y, 206, 210; Fleischmann v. Stern, 90 N. Y., 110.

The cause of action presented in the complaint being confessed by non-denial, was not open to traverse or contrary proof on the trial. Paige v. Willet, 38 N. Y., 31.

The mere allegation in the answer that defendant was indebted a hundred dollars “ and no more” by virtue of the contract which he set up, is no qualification of his admission that he was owing four hundred dollars under the contract on which the action proceeded.

Defendant’s admission of plaintiff’s cause of action for $400, and his own voluntary confession of indebtedness for $100 on another and different contract, would seem to entitle plaintiff to judgment for $500, instead of operating in any way to defeat or reduce the judgment recovered.

The case was properly disposed of below, and the judgment is affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


author: Bischoff, J.

text:
    Fanny Hyman, App’lt, v. Betti Friedman, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Appeal,—Cabe.
    A statement in a case on appeal that it contains all the testimony is not equivalent to a statement that it contains all the evidence, and does not affect the conclusiveness of the findings of fact upon the appellate court.
    8. Mortgage—Fraud.
    In an action to foreclose a mortgage, findings that the mortgage was procured from defendant by plaintiff and others in collusion with her by means of representations that the moneys to he secured thereby would be delivered immediately on its execution; that such representations were made with intent to deceive and defraud defendant; that she executed the mortgage relying on such representations, and that no consideration was given to defendant therefor, are sufficient to sustain a judgment that the mortgage be delivered up and cancelled.
    Appeal from judgment in favor of defendant, directing that mortgage be delivered up and cancelled.
    Action for the foreclosure of a mortgage on real property, the •defense being that the mortgage was procured by fraud and was. without consideration.

      Samuel F. Hyman, for app’lt; David Zeventritt, for resp’t.
   Bischoff, J.

The case on appeal purports to contain all the testimony, but not all the evidence, taken upon the trial, and the facts found by the learned trial judge are therefore conclusive upon us. Aldridge v. Aldridge, 120 N. Y., 614, 616; 31 St. Rep. 948. These are to the effect that the bond and mortgage described in the complaint were obtained from the defendant by the plaintiff, and others in collusion with her, by means of representations that the moneys intended thereby to be secured by the defendant would be delivered to her immediately upon the execution of those instruments; that such representations were false and fraudulent, and were made with intent to deceive and to cheat and defraud the defendant; that relying, upon plaintiff’s good faith, and believing the representations to be true, defendant executed and delivered the bond and mortgage, but that no consid-6 eration whatever was given by the plaintiff to the defendant therefor. Nothing further seems to be required to sustain a judgment for the defendant adjudging the bond and mortgage null and void and directing them to be delivered up and cancelled, and as plaintiff’s exceptions to the rulings upon the trial prove, upon examination, to be unsubstantial, the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Daly, Oh. J., concurs; Pryor, J., concurs in result.


text:
    Henry R. Hydecker, Resp’t, v. Samuel Williams et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Master and servant—Wrongful discharge.
    A servant engaged for a definite period “ so long as he shall satisfactorily perform his duties,”, cannot be discharged at the mere volition of the master, or because “ business is dull” and he “ could not afford to go> on with the contract.”
    Appeal from judgment of district court in favor of plaintiff.

      John C. Coleman, for resp’t; Durnin & HendricJc, for app’lts.
   Pryor, J.

On this appeal from a judgment of a district court the only point presented for serious consideration is whether a servant engaged for a determinate period, “ so long as he shall satisfactorily perform his duties,” may be discharged at the mere-volition of the master. For the jury found, upon adequate evidence, that the servant, plaintiff’s assignor, did in fact perform his duties to the satisfaction of the defendants, the masters, and that they dismissed him only because “ business was dull,” and <! they could not afford to go on with the contract.” Hone of the citations sustains the proposition upon which appellants must rely for reversal of the judgment, namely, that although an employee perform the condition, by breach of which only his employment may determine' before expiration of its stipulated period, he maj be discharged meantime at the will of the employer. The proposition is a self-evident absurdity.

But appellants say that the verdict finding the fact of the satisfactory performance of his duties by the employee is against the weight of evidence. The jury thought otherwise, and, if we have the power, we are not inclined to disturb their decision, unless it be palpably contrary to reason and right; which is not the case.

Judgment affirmed, with costs. . •

Bischoff, J., concurs.


author: Daly, Ch. J.

text:
    Adolph Scherrer, Resp’t, v. Isaac A. Hopper & Co. and Charles Plock & Co., Impl’d, App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Mechanics’ lien—Enforcement of bond to discharge lien—Parties.
    In an action to enforce a bond given to discharge a mechanics’ lien, all other lienors, although their liens have been discharged by bond or deposit, are proper if not necessary parties.
    Appeal by defendants Charles Block & Company and Isaac A. Hopper & Company from an order of the special term of this court denying their motion to strike out certain parties as party defendants in this action.

      Norwood & Coggeshall, for app’lts; Henry Seldner, for pl’ff resp’t; Fzehiel Fixman, for defts resp’ts.
   Daly, Ch. J.

This is an action in the nature of a foreclosure of a mechanics’ lien, filed by the plaintiff who performed work and labor for Charles Block & Company, sub-contractors under Isaac A. Hopper & Company, who were contractors' with, the owners, The Music Hall Company, for the erection of a building in the city of Hew York. Before the commencement of the action the plaintiff’s lien was discharged by the filing of a bond under the provisions of the mechanics’ lien act, Laws 1885, chap. 842, § 24, subd. 6, and the action is brought to obtain a judgment which shall be enforceable against the sureties of the bond. The plaintiff having made parties defendant all the other lienors and incumbrancers upon the property, some of whose liens had been discharged by a deposit of money as provided in the lien act (id"., subd. 2), the defendants contractors made a motion to have the summons and complaint amended by striking the names of such parties therefrom. The motion was denied, and from the order entered thereon this appeal is taken.

Where premises against which a mechanics’ lien is filed have been discharged by the filing of a bond, the lienor’s right of recourse against the sureties depends upon his obtaining a judgment against the property, i. e., a judgment in an action wherein he establishes a right too judgment of foreclosure and sale of the premises, enforceable by a sale of the premises but for the filing of the bond. Copley v. Hay, 16 Daly, 446; 34 St. Rep., 771.

'l'lie lienor must establish the existence of a valid lien upon the premises at the time of the filing of the bond ; and this requires a sub-contractor to show that there is a sum due from the owner to the contractor sufficient after the payment of prior liens to satisfy the claim in suit. Act, § 1; Lauer v. Dunn, 117 N. Y., 405-408; 26 St. Rep., 412.

In the ordinary action in a court of record to foreclose a mechanics’ lien, this is determined when all the parties are before the court, and to that end the statute requires that all parties who have filed liens, as well as subsequent incumbrancers, shall be made parties defendant, in order that the court may settle and determine the equities of all the parties, and decide the extent, justice and priority of the claims of all parties. Id., § 17 and § 21.

It is for the interest of the owner, if his premises are still subject to the lien, to have all the lienors made parties to the action, and the extent and priority of all the liens determined in one litigation ; and it is equally for his interest to do so if he has given a bond to discharge the premises and his sureties are liable in place of his property ; although where the bond has been filed by the contractor or any third party, and the premises are discharged, the owner would seem to have no further interest in the litigation even as a party himself. Copley v. Hay, above ; Schaettler v. Gardiner, 4 Daly, 56. This of course not being ;the case where the owner is personally liable to the lienor for the debt. Lawson v. Reilly, 13 Civ. Pro., 290.

But after the filing, of a bond to discharge a particular lien are -other lienors necessary parties to an action by the particular lienor the ultimate object of which is to establish a right to an action upon the bond given for his special security?

It is contended by the appellants that they are not, and particularly,. as in this case, where the liens of such parties have also been discharged by the deposit of the amount claimed in each lien.

But is not the question of the priority of the several liens and the amount due upon each involved in the claim of each lienor upon his particular bond? Whether the liens have been discharged by bond or by deposit, the right of recourse to those securities depends upon proof of the same facts which give the right of recourse to the property. The bond and the deposit take place of the property and the liens are imposed upon them instead of upon the property. People v. Butler, 61 How., 274.

The claimant in order to establish a lien upon the property must show his right, as against all other claimants, to payment from the fund subject to the liens, viz.: the moneys due from the owner to the contractor; and must show that after the satisfaction of all such claims as are entitled to priority there is sufficient to satisfy his particular lien, Lien Act, § 1; Gibson v. Lenane, 94 N. Y., 183 ; and he must show the same facts and right in order to-¡establish a lien upon the bond or deposit and a right of action against the sureties upon the bond.

The inquiry therefore necessary in the case of each lienor is the same whether his lien has been discharged by bond or deposit or aot discharged, and the judgment in his action must determine the ¡equities and priorities of all the liens upon the fund. This cannot be done in separate actions brought by the several lienors against the owner and contractor alone.. The action to establish the lien and the right to a participation in the fund out of which it is to be satisfied is of equitable cognizance, Field v. The Mayor, 6 N. Y., 179—187,, and even in the absence of statutory provisions all the lienors subsequent as well as prior are proper, if not necessary parties to an action to foreclose a mechanics’ lien, according to the general practice in equity. Kenney v. Apgar, 93 N.Y., 539—545.

The plaintiff was right therefore in making all the other parties who had filed liens upon the premises defendants in his action and the motion to strike them out as parties was properly denied.

Order appealed from affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author:
Daly, Ch. J. Daly, Ch. J.
      Pee Curiam.

text:
    In the Matter of the Accounting of Henry Aplington, Assignee of George B. Littell and Marion W. Littell.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Assignment for creditors—Accounting of assignee—Counsel fees.
    While an assignee for creditors in malting a disbursement to counsel for services in contesting a claim to surcharge him on his accounting may not be restricted to what would be the statutory allowance in an action for such sum, yet the proportion between the amount involved and the compensation claimed by the attorney should always be considered in making an allowance therefor.
    Appeal from order, dated February 12, 1891, made at special term, which among other things disallows as a proper item of expenses to be charged against the assigned estate part of the sum paid by the assignee for counsel fees, and denies the assignee’s application for further allowance for such expenses. The facts, appear fully in the opinions at special term, as follows :
   Daly, Ch. J.

The assignee having paid to his counsel, Nelson Smith, Esq., $500 out of the funds of the estate, for fees and charges upon the accounting of the assignee; and the court at special term, in its final order or decree, having disallowed $250-of that sum; and upon appeal by the assignee, at general temí, having reversed the said order in that respect, and allowed theassignee to make proof, by affidavits, of the reasonableness of such payment to his counsel, the question now comes before me on such proof and the opposing affidavits of the creditor, Cortland ¡B. Littell, who objected to such payment.

It appears that the counsel was retained by the assignee, during proceedings for an accounting, pending before James R. Steers,. Jr., referee, to resist an attempt by the said creditor to surcharge the assignee’s account with the sum of $2,583.70, and interest thereon, amounting altogether to $3,183.70, which, it was claimed, the assignee neglected to sue for and recover as statutory penalties from the Importers & Traders’ National Bank, for alleged usury paid to the bank by the assignors. IT. S. R. S., §§ 5197, 5198. _ .(

_ The facts concerning the alleged usury were practically undisputed, and were mainly established by a list or account of discounts submitted in evidence. And the question to be determined by the referee was one of law, and required the discussion :

I. As to whether there were any payments of usury to the bank within the statute; the proofs being of discount at a greater rate than the legal interest, and there being no proof that the notes discounted were subsequently paid by the makers; and

IL As to whether the cause of action for the recovery of the statutory penalties was assignable and passed to the assignee.

The matter was heard by the referee; counsel attended before him on three occasions, at one of which testimony was taken; there were consultations between the counsel and the assignee, and much time spent in the examination of the law and the preparation of a brief; the referee found in favor of the assignee, and reported against the claim made by the creditor; exceptions having been filed to the report, they were argued by counsel at the special term, and the report was confirmed. It is for these services that the assignee paid his counsel $500.

The court, in making the final decree upon the accounting, considered $250 a reasonable compensation; and I am now to determine (under the order of the general term) whether the payment of a greater sum was reasonable.

The amount involved in the dispute was $3,183.70, the sum with which the creditor sought to charge the assignee. If the accounting had been had in an action, instead of a special proceeding under the assignment act, the allowance to the assignee, in addition to his taxable costs, could not have exceeded the amount fixed by the Code, to wit, five per cent upon the sum claimed, or the value of the subject matter involved, Code, § 3253, subd. 2, and this would not have exceeded the amount of $160. Although the assignee, in making a disbursement to his counsel for services in contesting such a claim upon his accounting, may not be restricted to what would be the statutory allowance in the event of an action against him for such a sum, yet the statute furnishes a very reasonable guide in the matter, and the proportion between the amount involved and the compensation claimed by the attorney is an element which should always be considered. It might be that the professional labor required in resisting a claim of $100 would be as great as that demanded in this case, yet a charge of $500 counsel fees would not be allowed for such services. This rule is especially applicable where the estate in the hands of the assignee is small, and would be greatly depleted by the allowance of large counsel fees. The common sense of the legal profession is quite in accordance with this view, for it is stated that one of the learned counsel, who has testified on behalf of the assignee to the value of the legal services under consideration, has subsequently admitted that the amount of the estate is $n important element in fixing the amount to be charged for a specific service, and that this element was not considered by him in making his affidavit; another has stated that if he had been apprised of the fact that the total amount of the assigned estate in the hands of the assignee at the time the services in question were rendered was less than $2,000, his estimate of the value of such services would have been far less than $500, the sum at which he fixed it in his affidavit. The amount of the estate in this case does not exceed $1,420, and it is out of this small estate that the payment of $500 was made.

It appears from the affidavits of counsellors at law, submitted ■on both sides, that there is a wide difference of opinion among the members of the bar to whom the question was submitted as to the value of the services under consideration; four of them -consider such services worth $500 and upwards; one $750, one $500 to $750, one $750 to $1,000, two of them $250, one $225, one $200 and one $180.

Upon the evidence before me, under the circumstances of this case, I am satisfied that a reasonable payment for the services rendered would not be more than the sum of $250, allowed by the court in the final decree in this matter, and the payment by "the assignee of a greater sum, viz., $500, was not reasonable; and .an order may be entered in accordance with this finding.

Daly, Ch. J.

The estate should not be depleted by the allowance of any further sum to the assignee for counsel fees or legal assistance beyond the taxable costs and disbursements already awarded him by the general term. The result of his litigation over the allowance made to him in the final decree is to leave that allowance at the sum at which it was fixed then by the special term. He has his costs and disbursements of the appeal from that portion of the decree, and such taxable costs are ample compensation for the labor involved in the appeal- In the subsequent proceeding he has been unsuccessful in his endeavor to increase his allowance beyond the sum fixed originally by the special term, and the estate ought not to bear the burden of his fruitless litigation. As to the claim now made for legal services up to the time of the entry of the final decree, they were fully paid for by the counsel fee allowed upon the accounting.

An order providing for the resettlement and re-entry of the final decree upon the basis of the disallowance of a- greater sum than $250 for counsel fees, as originally determined by the court, and providing for the payment of the original balance found due, after the deduction of the costs and disbursements of the appeal as taxed at $118.45, should be entered.

Nelson Smith, for assignee, app’lt; James M. Hunt, for Cortland B. Littell, resp’t.

Pee Curiam.

The authority of the assignee to employ counsel on behalf of the assigned estate and his right to be reimbursed for the reasonable counsel fees thus incurred are not disputed, but the refusal of the court at special term to allow the sums asked by the assignee to be credited to him as proper items of disbursements proceeded upon other grounds which are fully stated in the-opinions of the learned chief judge.

These grounds appear to us to be conclusive upon the propriety of the disposition of the matters embraced in the order appealed from, and it should, therefore, be affirmed.

Order affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    De Witt Mull et al., Resp’ts, v. Henry M. Jones et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Mechanic’s lien—Substantial compliance with statute.
    Where a sub-contractor has performed his contract according to its main scope and intention, omitting nothing, and is waiting merely to do odds and ends of patching which' he cannot do until after all the other mechanics have left the building, a notice of mechanic’s lien filed by him, in which he claimed that his contract had been performed, substantially complies with the statute and is valid.
    Appeal from judgment of foreclosure and sale under a mechanic’s lien, entered, on report of a referee.

      J. Homer Hildreth, for resp’ts; ' W. Stebbins Smith (Jacob Fromme, of counsel), for app’lts.
   Daly, Ch. J.

This is an appeal by defendants, Jones and Jackson, from a judgment of this court, entered upon the report of a referee, in an action to foreclose a mechanic’s lien, filed December 4, 1888, by Mull & Fromer, sub-contractors, for plastering work, etc., under Bowers & Yreeland, contractors with Homy M. Jones, owner, for altering a certain building in the city of Hew York.

The plaintiffs were to receive $587'for their work when it was all completed. At the time of the filing of their lien all was completed with the exception of pointing up the plastering after the other mechanicshad left the building, an item which involved an expense of $27.55. The performance of this under the plaintiffs’ contract was prevented by the abandonment of the work by the contractors, Bowers & Yreeland, after the lien was filed; hut it was afterwards done by plaintiffs at the request of the owner, who finished the building himself at a cost of $847.92, which was less than the final payment coming to Bowers & Yreeland, and left a balance in the owner’s hands of $287.06, to which extent the referee held the plaintiffs’ lien established against the property.

The owner and the contractors’ assignee object to this decision on the grounds (1) that all of plaintiffs’ work was not performed, and, therefore, nothing was due them when the lien was filed; and (2) that no lien was acquired, because the notice untruthfully stated that all the work had been performed.

It is not necessary that the work for which the lien is filed should be completed at the time of filing the notice. A lien will be acquired if the notice is filed at any time during the performance of the work ; but the notice must state whether all the work for which the claim is made has been actually performed, or if not, how much of it. Act of 1885, chap. 342, §§ 1, 4. Failure to comply with this requirement is fatal to the lien, Close v. Clark, 16 Daly, 91; 30 St. Rep., 671, but a substantial compliance with it is sufficient for the validity of the lien and to give jurisdiction to the courts to enforce it. Act, § 25.

I think the notice of lien in this case substantially complied with the statute, in stating that all the work had been done, because the claimants had then substantially performed their contract. All. that remained were odds and ends of pointing up after the other mechanics. This involved but a trifling outlay, and the plaintiffs were not in default with respect to it, but were ready and willing to do it if the contractor had reached that stage of his work. It was but a small and unimportant part of the contract and it was not omitted through their fault. Flaherty v. Miner, 123 N. Y., 382; 33 St. Rep., 681, and cases cited; Woodward v. Fuller, 80 N. Y., 312.

The cases bearing upon this point cited by appellants do not ■conflict with this view. In Close v. Clark (above) the lien was held to be invalid for stating that all the work and materials had been actually performed and furnished when there were several omissions which the claimants failed to supply although notified to do so; and the untruthful statement might have misled subsequent lienors and the public. In Foster v. Schneider, 50 Hun, 151; 19 St. Rep., 449, the lien was held invalid for containing a ■similar statement when in fact only a third of the work had been done and yet the lien was filed for the whole contract price, the court saying that the statement was materially untruthful and made to avoid complying with the law, and was deceptive of itself and might have been injurious to the other persons having ■claims under the statute against the property.

It would seem, therefore, that it is only a material misrepresentation in the notice which affects its validity and that a statement in it which, although not exactly the fact, .is not calculated to mislead other claimants or the public is not material; and that the lien is valid if the statements contained in it are substantially true, and it would seem reasonable to hold that where a lienor has performed his contract according to its main scope and intention, omitting nothing, and is waiting merely to do odds and ends of patching which he cannot do until after all the other mechanics have left the building, he may claim that his contract has been substantially performed. As the term i’S generally understood his contract work is done, although his payment does not mature until he has completed the odds and ends. There is absolutely no misrepresentation in such a claim.

It is urged, however, that the effect of the filing of the lien before the time of payment matured with a statement that the whole amount was due and owing was to destroy the credit of the contractor, and induce the filing of other liens, force him to abandon his contract and throw the burden of completing the work upon the owner. There is no finding to that effect, but at .all events the argument is of no force. The filing of the lien does not excuse the contractor from going on and performing his ■contract which the law presumes his ability to do; and so far as the owner is concerned he has suffered inconvenience from the default of his own contractor and not of the plaintiffs, and is besides not damaged, for he has been allowed the full cost of completing the work, the plaintiffs’ lien attaching to the balance only of the money unpaid upon his contract.

As to the contention that, as the plaintiffs were not entitled to payment until the pointing up had been done, upon the principle that there was no performance of the contract while anything remained undone which it was the duty of the contractors to do, Watts-C. Co. v. Yuengling, 51 Hun, 302; 21 St. Rep., 186, the referee could not find there was anything due them at the time of the filing of the lien, this is in effect disposed of by the conclusion already reached that the facts warranted the claim that at the time of the filing of the lien the work had been substantially performed. What remained to be done was prevented by the contractor’s subsequent default; and the argument of appellants, if carried to its legitimate conclusion, would deprive plaintiffs of any compensation for the work actually performed; for the contractor, by his abandonment, deprived them of the opportunity to complete. This defense is, of course, not available to the contractor nor his assignee, for they could not urge as an objection to plaintiffs’ demand upon the contract that they had failed in any particular as to which the assignor himself had prevented performance.

The claimants were entitled to an allowance of costs against the owner defending the action. He could have paid the amount he conceded due into court and thus relieved himself of costs. Act, § 19.

The judgment should be affirmed, with costs.

Pryor and Bischpff, JJ., concur.


text:
    Samuel Schurr, Resp’t, v. The New York & Brooklyn Suburban Investment Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Corporations—Ultra vires not available as a defense against an EXECUTED CONTRACT,
    A corporation organized for the purpose of “ purchasing, taking, holding, possessing, selling, improving and leasing real estate and buddings, manufacture, purchase, lease, sale, use of building stone, lumber and other building material,” contracted to have organized two corporations to carry on its operations on land owned by it. In an action to recover for the services rendered under the contract, Held, that though the contract was ultra vires, it was not available as a defense, the contract having been executed.
    :2. Ratification of unauthorized contract bt board of trustees.
    In such case, the board of trustees of the defendant corporation, by formal and unanimous action, adopted and confirmed the contract, which made it obligatory upon the defendant, even if otherwise ineffectual to bind it.
    Appeal from judgment of the general term of the city court of New York, affirming judgment for plaintiff.
    Action on contract.

      Abraham H. Sarasohn, for resp’t; Francis R. Van Vechten, for app’lt.

       Affirming 41 St. Rep., 90.

   Pryor, J.

The judgment is assailed upon two grounds; first,, because the contract in suit was ultra vires and so void; and secondly, because if within the power of the defendant corporation, the contract was not made by its authority.

The defendant corporation was organized under the act of 1848 as amended and supplemented by subsequent statutes, and for the “ purpose,” as avowed in its charter, “ of carrying on the business hereinbefore mentioned," namely, “ purchasing, taking, holding, possessing, selling, improving and leasing real estate and buildings, manufacture, purchase, lease, sale, use of building stone, lumber and other building materials.” The contract alleged as the foundation of the action is an agreement by defendant to pay plaintiff a certain sum for work, labor and services “ in organizing two stock companies or corporations to carry on their operations in the place ¡known as Belleport, Suffolk Co., N. Y., said place being owned by defendants.”

Upon the point of the competency of the defendant to make the contract, the argument of respondent is, “That the object of the corporation being to improve, sell and lease real estate, a contract with plaintiff to organize stock companies on its land so as to increase its value, is certainly not ultra vires.” Notwithstanding the confidence with which the conclusion is announced, we are of opinion that it is a non sequiiur.

“ In addition to the powers enumerated in the first section of this title, and to those expressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given.” 2 N. Y. Rev. Stats. (7th ed.), 1531. And that this statutory definition of corporate power is but an enactment of the common law principle,.is settled by repeated adjudication. Head v. Providence, Ins. Co., 2 Cranch, 127 ; Thomas v. R. R. Cc., 101 U. S., 71, 82; Curtis v. Leavitt, 15 N. Y., 9, 54; Halstead v. Mayor, 3 id., 430, 433. Such being the limitation upon corporate power, in order to the validity of a corporate contract, it must be either within the express terms of the constitutive instrument, or else implied, as “necessary to advance the objects of the corporate creation,”’ Legrand v. The Mercantile Association, 80 N. Y., 638, or, less stringently “as incidental to the objects for which the corporation is created." Green Bay etc., R. R. Co. v. Union Steamboat Co., 107 U. S., 98.

That authority to engage in the business of organizing' other corporations is neither necessary or incidental to the charter objects of the defendant company is a proposition too plain for plausible dispute. 27o doubt the erection of factories on defendant’s land would tend to enhance its value; but obviously, not any and everything that so tends is necessary or incidental to the charter objects of the corporation. The contract in controversy was entirely beyond the scope of defendant’s business and powers. Moss v. Averell, 10 N. Y., 449, 460, arguendo; Northwestern Union Packet Co. v. Shaw, 37 Wis., 655; 19 Am. Rep., 781; Weckler v. Bank, 42 Md., 581; Barry v. Merchants' Ex. Co., 1 Sandf. Ch., 280, 289; Davis v. R. R. Co., 131 Mass., 259; Diligent Fire Co. v. Commonwealth, 75 Pa. St., 291; Le Couteulx v. Buffalo, 33 N. Y., 333; Auburn, etc., v. Douglass, 9 id., 444 ; Fertilizing Co. v. Hyde Park, 97 U. S., 659; Thomas v. R. R. Co., 101 id., 71.

But respondent submits that, though the contract in suit be void as ultra vires, still it is not open to defendant, who has received the benefit of it, to resist its enforcement by the plaintiff, who has expended his labor on the faith of its validity.

Since the plaintiff is conclusively presumed to know the limits of defendant’s powers Alexander v. Cauldwéll, 83 27. Y., 480, it might be difficult to understand how, consistently with familiar principles, he can be permitted to say that he acted upon the faith of the validity of the contract; i e. in the belief that it was not in excess of the corporate powers. The defense of ultra vires is proposed to be excluded by operation of an estoppel; but the authority of a corporation to contract, depends on the construction i; of its charter, and that is matter of law. But a mistake of law merely, cannot be the foundation of an estoppel, because, since all are conclusively held to know the law, the party alleging the estoppel cannot pretend to have incurred detriment by reliance on a misunderstanding or misrepresentation of the law. Ignarantia juris, quad quisque scire ienetur, neminem excusat is an operative principle throughout the whole province of jurisprudence. Broom’s Maxims, 253.

Furthermore, if the fact that a contract beyond the power of a corporation has been performed suffice to preclude the defense of ultra vires, then manifestly all legal restraint on the powers of corporations is virtually of no effect.

Upon principle, therefore, it might be supposed that the defense of ultra vires is as available against an executed as against an executory contract; but, in this state at least, the law is conclusively to the contrary. Whitney Arms Co. v. Barlow, 63 N. Y., 62; Ellis v. Howe Co., 9 Daly, 78.

The inquiry then is: Was the contract in suit made by the defendant corporation?

To sustain the negative of the question the appellant relies on the authority of People's Bank v. St. Anthony's R. C. Church, 109 N. Y, 512; 16 St. Rep., 856. But the evidence lacking in that case and upon the defect of which the decision turned was supplied in the case before us. If the original engagement of the plaintiff was void for want of a contract by the trustees acting as as a board, exhibit 3 shows that as a board they ratified the employment, and as a hoard promised to pay him the money which he has earned and for which he recovered the judgment. By § 3 of the act of 1848 power to “manage the concerns ” of the defendant corporation is vested in the trustees; and by formal and unanimous action as a board they adopted and confirmed the contract, which if otherwise ineffectual to bind the defendant, thus became obligatory upon it.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.