text:
    The People ex rel. Taylor et al. v. Turner, County Judge, et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Certiorari—Proceeding to lay out highway—Review.
    The decision of the county court confirming the report of commissioner in a proceeding to open a highway cannot be reviewed on certiorari, whether the proposed highway is located in one town or in several towns.
    Appeal from special term, Onondaga county.
    Certiorari by Charles E. Taylor and James E. Allen to review the determination of Henry E. Turner, county judge of Lewis county and others, in relation to the laying out of a highway. From an order denying a motion by defendant to dismiss the writ, defendants appeal.
    Upon the 3d day of September, 1894, Isaac L Smith, an inhabitant of the town of Turin, in the county of Lewis, and Walter H. Millard, an inhabitant of the town of West Turin, in the same county, both of them being liable to be assessed . for highway labor in their respective towns, made application in due form to the county court of the county of Lewis for the laying out of a highway over and upon certain premises described in such application and the same being within the two above-mentioned towns. Thereupon commissioners were duly appointed by the county court, before whom a hearing was had, and thereafter such commissioners determined that the proposed highway was necessary,' and duly filed their determination and report which contained their assessment of damages made necessary by reason of the laying out of the same. The usual motion to confirm the report of the commissioners was then noticed for the county court of Lewis county, which notice was duly served upon all of the parties interested in the proceeding; and after a hearing in the county court, where the motion was opposed by one or both of the relators herein, the report of the commissioners was in all things confirmed by an order bearing date the 25th day of June, 1895. Thereafter the relators, feeling dissatisfied with the decision of the county court applied to the supreme court for a writ of certiorari to review the decision of the county court of Lewis county, which application was granted on the 9t,h day of December, 1895; and thereupon the respondents moved at a special term to vacate such writ, which motion was denied, with $10 costs, and from the order denying the same this appeal is brought.
    H. H. Ryel, for appellants.
    Walter Ballou, for respondents.
   ADAMS, J.

—This court has very recently had occasion to hold that the decision of a county court confirming the report of commissioners appointed to lay out a highway, under the provisions of chapter 568 of the Laws of 1890, and the amendments there, is final and cannot be reviewed by a writ of certiorari. People v. Onondaga County Court, App. Div. 542. The relators in this action endeavor to evade this decision by claiming that the proceeding is one which was instituted under section 96, instead of section 83, of the highway law. But we are unable to perceive the force of this contention. Section 83 and the immediately following sections are designed to point out the initiatory steps in all proceedings to lay out a new highway. Section 89 provides for a review of such proceedings in the county court, and that the determination of that court upon such review, shall be final. Section 96 simply directs that, where a proposed highway shall run through two or more towns; the commissioners of highways of each town shall have notice of all proceedings taken to lay out the same; and, further, that, where such toAvns are in different counties, and the application for the appointment of commissioners shall be made to a special term of the supreme court instead of to the county court. But the last clause of this section explicitly declares that in the latter case the same proceedings shall thereafter be had in the supreme court as are authorized in this chapter to be had in the county court. So that, as we vieAV the statute, it was clearly the intention of the legislature to make the revieAV of proceedings for the laving out of a highway by the county court final, without respect to the question of whether such highway was located in one or more towns, provided it did not extend into an adjoining county. But, however this may be, we think that the writ of certiorari wrns unauthorized in any event; for if, as we have shown, the statute of 1890 is applicable to this case, then the decision of the county court of Lewis county was final, and not subject to review in this court. But, on the other hand, if, as contended by the relators, such decision was not final, then the writ was not available, for they had their remedy by appeal. Code Civ. Proc. §. 2122; People v. Thayer, 88 Hun, 136; 68 St. Rep. 279. People v. Onondaga County Court, supra. We think the order appealed from should therefore be reversed, and the writ dismissed, with costs.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    The People ex rel. Ramsdale v. Board of Supervisors of Orleans County.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Mandamus—Failure to deny allegations oe relator.
    A peremptory writ of mandamus will be granted to compel the county court to supervise or audit a claim against the county, where relator avers that he actually performed the service specified and that they were necessarily rendered and the supervisors do not deny such allegation, but merely state that they disallowed the item on the ground that it was an “improper charge.”
    Appeal from special term, Erie county.
    Application by W. Crawford Ramsdale for a writ of mandamus to compel the board of supervisors of Orleans county to audit and allow relator’s claim for services performed as a justice of the peace in a certain criminal proceeding. From an order denying a motion for a perempwrit, relator appeals.
    Albert C. Burrows, for appellant.
    James Swart, for respondent.
   GREEN, J.

The relator was, during the year 1895, a justice of the peace in Orleans county. In March of that year there ivas laid before him, as such justice, an information charging the accused person with the crime of arson, and thereupon the relator issued a warrant for the apprehension of the accused, who was arrested, and brought before him, and an examination took place, which resulted in holding the accused for trial. In October, 1895, at the annual meeting of the board of supervisors, the relator • presented an itemized account for services and fees in the said proceedings, amounting in the aggregate to the sum of $15.05. One of the items was in these words and figures, “20 certificates at 25c.,—$5.00.” The account was referred to a committee, who, in a report to the board, recommended that the sum be audited and allowed at $10.05, and that an order be drawn in favor of the relator for that sum. The report was adopted by the boai-d, and the order was drawn accordingly, and tendered to the relator, which he refused to accept. The relator then moved for a writ of peremptory mandamus to issue against the board, directing them to forthwith convene and audit said bill, or said rejected item. The board appeared, and opposed the application, upon the ground, among others, that the board did examine, pass upon, and audit each and every item of the relator’s account, including the item of “20 certificates,” by disallowing the sanie, and allowing all the other items, which amounted to the aggregate sum of $10.05. The motion having been denied, the relator appeals to this court for relief.

The relator’s affidavit states that:

“The depositions taken • on said proceedings were duly signed, certified, and filed, as required by law;, that all the of the services for which the charges were made by him in said bill were actually and necessarily rendered in said proceeding, and that he charged the fees fixed by law, and .no more; that in regard to item of “20 certificates at 25c.— $5.00, deponent says that there were that number of certificates necessarily made by him on the hearing in said proceeding.”

In opposition to the motion, the respondent read the affidavit of Mr. Dean, a member of said board, and the chairman of the committee on justices’ claims. Deponent says:

“That in considering and passing upon the said item of *20 certificates’ the committee endeavored to act fairly upon the merits, and they determined and disallowed the same after full consideration, believing and understanding that said item was an improper charge.”

Deponent also states that he has served on the said committee during two sessions of the board, and examined, passed upon, and audited, all justices’ claims presented, but that no justice’s bill ever came under his observation wherein there was charged any such item for certificates. He also says that the committee directed the messenger of the board to notify the relator to appear and explain the item to the committee, but it is not stated that the messenger obeyed his instructions, and the relator explicitly denies that he received any such notification. "It. is not disputed that, he ihe relator did in fact take the depositions of the witness in writing, and certified each deposition, as he was required to do by section 204, Code Cr. Proc., he was entitled to charge 25 cents for certificate (4 Rev. St. [8th Ed.] 2785), and it therefore became the imperative duty of the board to audit and allow the claim. But if, on the other hand, he failed to perform this duty or service in any instance or respect, then, of course, he is entitled to nothing. We therefore can only understand the respondent’s contention to be that the board made a determination or adjudication of the fact as to the rendition of the services claimed and decided adversely to the relator; in other Avoids, that the claim is false, and the relator has committed the crime of perjury. If the papers presented by the board show that the claim Avas disalloAved upon that ground, then the Avrit Avas properly refused; otherwise it • must be granted. The question, therefore, becomes one of interpretation and meaning of the language used in the affidavits of Mr. Dean, taken in connection Avith the moving affidaAÚts, and paper.

By section 2070 of the Code of Cíauí Procedure, it is provided that “a, peremptory Avrit of mandamus may be issued, in the first instance, Avhere the applicant’s right to the mandamus depends only upon the questions of laAV.”1 If the relator fails to controArert the respondent’s affidavits, but proceeds to argument, and asks for peremptory Avrit, this ■ is equivalent to a demurrer; and if the defendant’s papers set forth facts showing that the relator is not entitled to the relief, a writ Avill not be granted. People v. Board of Apportionment of City and County of New York, 64 N. Y. 827: 3 Hun, 11; Supervisors v. Pindar, 3 Lans. 8; People v. Brush, 146 N. Y. 60; 65 St. Rep. 753; People Ar. Supervisors, of County of Westchester, 73 N. Y. 175. The relator is not entitled to a peremptory Avrit when a substantial and maerial issue of fact is raised by the affidavits. People v. Board of Police, 107 N. Y. 235; People v. Becker, 3 N. Y„ St. Rep. 202. And in determining AArhetlier the issuing of the AArrit is proper, simply the facts alleged in the petition, Avhieh are not denied or put in issue, and the affirmative allegations in the opposing affidaA'its, may be considered. People v. Rome, W. & O. R. Co., 103 N. Y. 95, 3 St. Ren. 39. And if the substantial, allegations in the moving affidavits are not fully met or avoided, a peremptory writ Avill lie granted in the first instance, as a general rule. People v. Assessors of New York, 52 How. Prac. 140; People v. Raton, 5 N. Y. St. Rep. 313. Now, the relator a\rers that he actually performed the services specified in the particular item in controversy, and that they Avere necessarily rendered in the proceedings referred to, and this aArerment is not controverted. It Avill, therefore, be assumed to be true. Ands that being so, it became the simple duty of the board to audit and allow the item at the sum or sums fixed by the statute, and it is no answer to say that it is an “improper charge.” And, though the uncontroverted statements of fact contained in Dean’s affidavit must also be taken as true, for the purposes of this motion, yet that is not so in respect of mere conclusions or inferences therein averred. It is, in substance and effect, alleged that the committee disallowed this item, “upon the merits,” because they believed and understood that it was an improper charge; but from the concluding statement in' that affidavit the inference may be fairly deduced that such belief was founded upon the circumstance that no other justice of the peace had ever made a charge of that character. In other words, the committee could not perceive the legal propriety of the charge, because they were ignorant of any statutory authority for it, and therefore concluded that it must be an improper claim. And yet it was a very easy matter to call upon the relator for an explanation, since he was a public officer, with his office located in the immediate vicinity of the place of meeting of the board, and where he was regularly in attendance in the performance of his judicial duties. He also states that he frequently met Mr. Dean during the session of the board; and if, as it is claimed, the committee directed a messenger to notify relator to come and “explain” the item, it was because they did not understand either what it meant, or its legality; not because they questioned the relator’s veracity. If the respondent intended by the phrase “improper charge” that the. committee did not believe that such services had been rendered, the averment is not sufficient to controvert the relator’s affidavit on that point; but if it is to be understood as meaning that the charge was illegal, even though the services were performed, then the affidavit is clearly frivolous. It is sufficiently manifest to the court that the committee did not audit and disallow this item upon the ground that they possessed proof (whether-legal or otherwise), or that they had good reason to believe, that the services had not been performed, but because they “believed and understood” that the charge for services of that charcter was not warranted by any law. They assumed the truth of the facts as to the other items, and why not in respect to this? In the judgment of the court the inference is very clear that the committee made no. inquiry in respect to the fact of the performance of these services, and mad no determination upon that matter. In that regard they failed in the performance of the duties imposed upon them by law, and omitted a duty they owed to a presumed bona fide creditor of the county. We are of the opinion, therefore, that the_ learned judge below was in error in assuming from the record and the papers presented that the board determined a matter of fact upon evidence before them. On the contrary, they assumed to determine a question of law, viz.: that sucha claim could not be otherwise than illegal or "improper.” It is not stated in the papers nor argued in the brief of respondent that the board determined that the services were not rendered. By the phrase (in the affidavit of Dean) "on the merits” is meant the "legality” of the charge, and not that the services had not been rendered.

The point is made that the nature or character of the certificates is not mentioned in the bill; nor does it state that any of the certificates were attached to the depositions; nor that the examination of the Avitnesses Avas taken in writing in the form of depositions, as required by section 204, Code Cr. Proc.; nor that each certificate Avas proper and necessary. The general answer to this is that, according to the affidavit of the chairman of the eommtitee, the item Avas disalloAved because they believed and understood that it was an improper charge, and not, consequently, by reason of any of these objections now raised for the first time upon the motion'. These objections, if deemed of any materiality or importance, could easily have been obviated. If the bill was not sufficiently explicit, it might have been rejected for that reason. But, hoAvever fully and specifically the item might have been stated, it is evident that it would, nevertheless, have been disalloAved for the reason stated in the opposing affidavit. The illegality of the claim, and not the insufficiency of the specification, was made the basis of its rejection.

It is also argued on behalf of respondent that the affidavit of the relator, attached to the account presented, fails to state in a direct and positive manner that the certificates had been made. The affidavit was a printed form, prepared by the board, and furnished to the relator, and reads: 6‘That all items in such account above set forth are correct; that the services charged therein have been in fact made or rendered, or necessary to be made or rendered.” It is said that this form of verification indicates that some of the services charged in the account were yet to be performed. This criticism appears to have been an afterthought. Certainly it was not considered any objection to the item existing in the minds of the committee. Besides, the bill shows that the examination of the prisoner took place in March, long before its presentation and from the nature of the proceeding it must have been finished about that time.

It follows that the order denving the motion for a writ of mandamus should be reversed, and that the respondent should be compelled by mandamus to hear, consider, and determine, at the next meeting of the board, the fact as to whether the relator did or did not render the services claimed; and if the board should decide that the relator’s claim is correct, just, and true, then that it should audit and allow the same in accordance with law. All concur.

Order reversed, with costs, and writ of mandamus granted directing the respondent, at the next meeting of the board, to hear, consider, and determine the fact as to whether the relator did or did not render the services claimed; and, if the board shall decide that the relator’s claim is correct, just, and true, then that it shall audit and allow the same in .accordance with law.

The appellant is also allowed $50 costs and disbursements of the motion. A11 concur.


author: ADAMS, J.

text:
    Max Herman et al. v. William H. Girvin.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Costs—Right to—Action to recover chattels.
    Code Civil Procedure, section 1726, which provides that where the verdict or decision in replevin awards a chattel which has not been replevied, or a chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, does not affect the right of the prevailing party to costs but they are governed by Code Civil Procedure section 3228, subdivision 2, which provides that if the value of chattels recovered by plaintiff,' as fixed, together with damages awarded to him, is less than fifty dollars the amount of his costs cannot exceed the amount of such value and the damages. Claflin v. Davidson, 53 N. Y. Super Ct. 12, 122, disapproved.
    Appeal from special term, Erie county.
    Action by Max Herman and Charles Gfuinxburg against William H. Girvin. From an order striking from the judgment the costs taxed in favor of plaintiff’s appeal.
    The action was brought to recover. possession of certain chattels, the value of which, as stated in the complaint, was $100. The property was taken by the sheriff under a requisition, and the defendant not having excepted to the plaintiff’s’ undertaking, and having omitted to required a return of the property to him, the same was delivered to the plaintiffs by the sheriff previous to the trial. The defendant’s answer put in issue the plaintiffs’ title, and also the value of the property in question, as alleged in the complaint. The action was tried at the Erie trial term in Januuary, 1896, and resulted in verdict in favor of the plaintiffs. awar ing them possession of the property, but without any damages for its detention; and no proof was given, upon the trial, of its value. Judgment was subsequently entered in accordance with the verdict, and for the plaintiffs’ costs of the action, which were taxed by the clerk, at the sum of $140.37. A motion was thereafter made by the defendant at special term to strike such costs from the judgment entered, and from the order granting such motion, the plaintiffs appeal to this court.
    George C. Sawyer, for appellants.
    George T. Hogg, for respondent.
   ADAMS, J.

The right to costs in an action of this character is undoubtedly regulated by the provisions of section 3228 of the Code of Civil Procedure, which, so far as they affect the question presented by this appeal, reads as follows:

“The plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor, in either of the following actions: (1) * ® ® (2) An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars,-the amount of his costs cannot exceed the amount of the value and the damages.”

The record before us shows that upon the trial all claim for damages for the detention of the property in question was expressly Avaived, and also that no proof Avas offered which tended in any way to fix the value of such property. With these facts established beyond controversy, it is somewhat difficult to see upon Avhat theory the plaintiffs are entitled to recover any costs. They have prevailed in their action, it is true, to the extent of recovering possession of the property claimed; but inasmuch as they have suffered no damage, and have omitted to prove the value of their property, they seem to have brought themselves directly Avithin the provision of the Code above cited, and thereby to have deprived themselves of the right to recover any costs Avhatever. The contention of the learned counsel for the plaintiffs is that the section of the Code already to adverted must be construed in connection Avith section 1726, which is one of the proAÚsions of title 2, relating to actions to reco\rer chattels, and which reads as folloAArs:

“The verdict, report or decision must fix the damages of the prevailing party. Where it awards to the plaintiff a chattel, which has not been replevied, or Avhere it aAvards to the prevailing party a chattel, which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the next section, fix the value of the chattel, at the time of the trial.”

The argument being that inasmuch as the chattels in controversy in this action were replevied by the plaintiffs at the commencement of their action, and were not- subsequently replevied by the defendant, it became unnecessary for the jury to “fix the damages,” and that subsequently this action was excepted from the provisions of subdivision 2 of section 3228; and in support of this argument the attention of the court is directed to the case of Claflin v. Davidson, reported in 53 N. Y. Super. Ct., at page 122. It must be conceded that this case is an authority in support of “the position taken by the plaintiffs upon this appeal, but we find ourselves unable to concur in the view which is there taken in the question under consideration, and Avhich seems to be in direct conflict Avith a more recent decision of the general term of the supreme court, in the second department, viz. Lockwood v. Waldorf, 91 Hun, 281. Our construction of section 1726 is that it has no relation whatever to the question of costs, but that it is designed merely to furnish a means of ascertaining the damages Avhich the prevailing party in an action of replevin has sustained by reason of being deprived of the possession of his property, in order that the damages- thus ascertained may operate as a .substitute or an equivalent for the property itself, where the sheriff finds himself unable to deliver possession thereof to the true owner. Brewster v. Silliman, 38 N. Y. 423; Phillips v. Melville, 10 Hun, 211 If the view thus expressed is to obtain, then it is clear that the only provision of the Code which bears upon the plaintiffs’ right to costs in this action is the one first adverted to, and the language of this provision is so clear as to require little or nothing to be said in order to give it construction. Under it the plaintiff in an action of replevin, in order to entitle himelf to a full bill of costs, must establish, in addition to his right to recover the chattel in controversy, the fact that its value, together with the damages, if any, Avhich shall be aAvarded to him, amounts to the sum of $50 or more. If, on the other hand, such value and damages amount to less than $50, he cannot recover costs in excess of the amount of such value and damages; and it folloAvs that if the property has no value, and there are no damages, he can recover nothing by Avay costs The obvious design of this provision is to compel the plaintiff, in bringing an action of replevin in the supreme court, to make sure that he can establish value and damages to the extent of at least $50, as a condition to the recovery of a full bill of costs; and this construction is in entire harmony with subdivisions 3 and 4 of the same section, all three of which are evidently intended to force a plaintiff to bring his action in an inferior tribunal in cases where the subject-matter in controversy is comparatively small in value. Rodgers v. Arnold, 12 Wend. 30. We conclude, therefore, that the order of the special term was right, and that the same should be affirmed.

Order affimed, with $10 costs and disbursements.

All concur.


text:
    In the Matter of Christopher W. Forkel, as Committee, etc.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Committee of lunatic—Accounting—Jurisdiction of county court.
    On an application for a settlement of accounts and for a discharge, made by the committee of a lunatic to the county court which has coordinate jurisdiction with the supreme court, over the person and property of lunatics (Code Civ. Proc. sees. 3i0 2320) and which has acquired jurisdiction over the persons interested in the estate in question, all claims presented by the committee should be disposed of on equitable principles in order to avoid the expense of further litigation.
    2. Same—Disbursements before appointment.
    The committee of a lunatic should be allowed on his accounting for disbursements made before his appointment, where they were necessary and proper.
    3. Same—Costs.
    The costs of an accounting by the committee of a deceased lunatic, of whose estate no administrator has been appointed, should be allowed out of the estate, though as some of the items claimed the committee could only look to the personal representatives of the lunatic.
    Appeal from Monroe county court.
    Accounting by Christopher W. Forkel, as committee of William B. Forkel, a lunatic. From an order modifying the report of the referee theretofore appointed to take and state the accounts, the committee appeals.
    John R. Fanning, for appellant Christopher W. Forkel, committee, and others.
    Frank J. Hone, for contestants and respondents, the heirs at law of William B. Forkel.
   ADAMS, J.

—The record in this proceding establishes the following facts, concerning which there seems to be little or no controversy: In the year 1879, William B. Forkel was, by proceedings duly instituted, declared a lunatic. At that time his family consisted of six children and a wife. Two of the children and his wife died in the year 1880, and shortly thereafter, by an arrangement entered into between the relatives, two of the children, John M. Forkel and Christian J, Forkel, were taken into the family of their uncle, Christopher W. Forkel, by whom they were subsequently cared for and maintained. At this time these children were of the age of 10 and 8 years, respectively. Thereafter, and upon the 31st day of January, 1881, Christopher W. Forkel, who-was the brother of William B. Forkel, ivas appointed the committee of the person and property of his brother, and he continued to act as such committee until the 9th day of November, 1890, when the latter departed this life, leaving an estate consisting of both real and personal property. The decased left no will, and no administrator has been appointed of his estate. At the time of the death of William B. Forkel, the appellant, as his committee, was in possession of all of his brother’s property, which possession he retained until July, 1891, when he petitioned the county court of Monroe county, asking for a settlement of his-accounts and his discharge as such committee. Attached to liis petition was a verified account of the receipts and expenditures of the petitioner as such committee. The children and heirs at law of the deceased lunatic challenged the correctness of such account, and interposed objections' to a number of the items thereof. The matter was thereupon sent to a referee by an order of the Monroe county court, and subsequently the referee so appointed reported to the court that he had taken proof of the accounts, and, as a result of his investigation thereof, recommended that the committee be charged with the sum of $695.86, and credited with the sum of $1,509.67. The referee, in his report, found that the appellant, prior to his appointment as such committee, had advanced certain sums of money or paid certain claims against William B. Forkel, amounting in the aggregate to the sum of $440.31, for which he should be allowed: credit; and he also recommended that he be credited with the cost of maintaining the two boys for the period of 80 Aveeks at $3 each per Aveek, which amounted to the sum of $480. XJpon the coming in of the report of the referee the-county court disallowed all the charges or items made by the appellant prior to the date of his appointment as such committee, and likewise disallowed the charge of $480 for the board of the íavo boys, John and Christian Forkel, and directed that the report of the referee in all other respects be confirmed, but denied to the committee his commissions or the disbursements of his accounting, unless, after making the deductions specified, there shall be found remaining in his hands funds available for that purpose. There is nothing in the record before us to indicate the reasons AAdiich influenced the coun'ty court to strike from the committee’s account the items above referred to, but it may perhaps be fairly inferred from what does appear that so much of such account as embraced expenditures made prior to the appointment of the appellant as committee was disallowed upon the ground that the expenditures were unauthorized, or that at most they constituted a claim against the estate of the deceased lunatic, Avhieh could not properly be settled upon the accounting of the committee, but one which must be presented to the administrator of his estate in the event one is appointed; and Ave likewise infer that the claim for the maintenance for the two minor children Avas disallowed for the reason that no express contract Avas entered into for their support, and that no facts Avere made to appear from which any agreement to pay therefor could be implied. At all events, upon the argument of the appeal the learned counsel for the respondents assumed that the action of the court below must be sustained, if at all upon some such grounds as those we have stated. After a careful review of of the facts of the case from the standpoint thus indicated, we find ourselves unable to approve of the modification of the referee’s report which the order appealed from directs. There can, of course, be no question but that upon the death of the lunatic, the powers and duties of the committee Avere terminated; for such is the express provision of the statute. Code Civ. Proc. sec. 2344. And upon the happening of that event there Avas nothing left for the committee to do except to render an account of his proceedings, and dispose of the property remaining in his hands in the manner directed by the court. Killick v. Bank (Sup.) 1 N. Y. Supp. 501. In the present case, had there been an administrator of the estate of the lunatic, he could have cited the committee to render an account; or the committee, upon his own petition, could have asked for his discharge, Avith permission to turn over such property as might possibly remain in his hands to the administrator. But, inasmuch as no a 1 ministra tor had been appointed the only thing which the committee could do Avas to apply to the court for his discharge, and give notice of such application to the heirs at laAV and next of Ivin of the deceased. This he did do, and upon the accounting all the parties interested in the estate Avere duly represented, and were furnished a full opportunity to examine into and criticise and oppose such of the items of the committee’s account as they regarded objectionable

The court to which this application was thus addressed having, co-ordinately with the supreme court, jurisdiction over the person and property of the lunatic (Code Civ. Proc. secs. 340, 2320). and having likewise obtained jurisdiction over the persons who were interested in this particular cs fate, it was manifestly proper that any claim which ,vas presented by the committee should be disposed of upon equitable principles, and the expense and annoyance of further litigation thereby avoided. Boughton v. Flint, 74 N. Y. 476; Hyland v. Baxter, 98 N. Y. 610; In re Lofthouse, 3 App. Div. 139. Strictly speaking, the claim for the maintenance of the children was one which had been incurred Avithout any express authority. It was one, also, -which existed in favor of the committee personally, and the disbursements -made by the appellant prior to the date of his appointment as such committee were likewise in the nature of advances made by him for the support of his brother and his brother’s family during a period of time, when, confessedly, the brother was incomptent to care for himself, or those Avho were dependent upon him. There is no question, however but that the disbursements thus made Avere necessary and proper; neither is any question raised as to the good faith of the appellant in making them; and Ave look in vain for any just criticism of the charge he has made for the care .and maintenance of the infant children. Upon what principle of equity, then, should he be denied payment or reimbursement? The court Avhich acquires jurisdiction of persons incompetent to manage their oavh affairs is required, among other things, to provide for the payment of their debts out of their estate (Code Civ. Proc. sec. 2321); and we fail to ¡see why a debt incurred prior to the appointment of a committee, even though it be in favor of the person so appointed, should not be treated with the same, consideration as though it Avere one existing in favor of a stranger, which liad been incurred in die administration of the estate. In other Avords, Ave think the appellant’s claim for advances made by him for the benefit of liis brother, before he sustained the relation of trustee to him, and for Avhatever it was reasonably worth lo support the tAvo minor children, should have been allowed him upon his accounting in this proceeding, inasmuch as there is no denial that the advances Avere made and the children cared for, and nothing which in any Avise impeaches the good faith or integrity of the appellant in the management of the f si ate committed to his charge. Benedict v. Sliter, 82 Hun, 190-196, 31 N. Y. Supp. 413. We are disposed, therefore, to sus fain the referee in the statement of the committee’s account rendered by him; and Ave are also of the opinion that the learned county court erred in the provision Avhich it made respecting the commissions of the committee, and the disbursements incurred upon his accounting. If we ar© justified by the facts, in the view which we have taken of this case, no good reason is furnished why he should be deprived of his commissions, or made to defray personally riie expense of obtaining his discharge. A very considerable portion of the account filed by him appears to have been disallowed by the referee, presumably, for the reason that it embraced expenditures made subsequent to the death of the incompetent; for so much of his claim as arises from expenditures thus made he will, undoubtedly, because of the statute heretofore cited, be obliged to look to the personal representatives of the deceased for reimbursement. This, we are inclined to think, is all the hardship and annoyance to which he ought, properly, to be subjected. The order appealed from should therefore be reversed, and the report of the ■ referee confirmed, .and the order should provide that the commissions of the committee, the expense of his accounting, and the costs of this appeal should be a charge upon the estate of William B. Forlcel.

Order reversed, and report of referee confirmed, with, costs, to be paid by the estate.

All concur.


author: ADAMS, J. HARDIN, P. J.

text:
    First National Bank of Baldwinsville v. Connell et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896 )
    Corporations—Liability of directors—Failure to file annual report.
    A note received by a corporation in violation of Laws 1892, chapter 688» .section 42, which forbids a corporation to issue stock except for money' labor, or property, is nevertheless valid in the hands of a person who advanced money to the corporation on the faith of the note, and therefore the obligation of the corporation for the money advanced is one for which the directors are liable, where they fail to file the annual report as required by Laws 1892, chapter 688, section 30.
    Appeal from circuit court Onondaga county.
    Action- by the First National Bank of Baldwinsvilleagainst Lansing W. Connell and another, as directors the Syracuse Bamboo Furniture Company, a domestic eorporaion, to recover the sum of $1,000, alleged to be due from said company to plaintiff. The liability of defendants is sought to be established on account of an alleged failure to file the annual report required by Laws 1892, c. 688 (stock corpora-ion law), § 30. Judgment was entered on a verdict in favor of plaintiff for $1,159.04 damages and costs, and defendants appeal.
    John Hogan, for appellants.
    George H. Sears, for respondent.
   ADAMS, J.

This action is designed to charge the defend" antsz as directors of the Syracuse Bamboo Furniture Company, with liability for a debt of that corporation, by reason of its failure to file an annual report, as required by section 30 of the stock corporation law, within the .month of January, 1892, or at any other time prior to the 30ih day of January, 1893. The defendant in their answer, admit the incorporation of the company, that they were directors thereof, and that the company had omitted to file its annual report within the period of time specified. They also admit that neither of the defendants filed with the secretary of state a verified certificate stating that they, or either of them, had endeavored to have such annual report made and filed. But they deny the existence of any valid claim in favor -of the plaintiff against either the Syracuse Bamboo Furniture Company, or against them as directors of such company. The plaintiff, in its complaint, alleges:

That on or about the 18th day of July, 1892, and after the time for filing the annual report hereinbefore mentioned, and before it was filed, and before any annual report as required by law was filed, the said Syracuse Bamboo Furniture Company became indebted to the paintiff in the sum of $1,000 for and on account of money loaned and advanced by this plaintiff to the said the Syracuse Bamboo Furniture Company, which loan and advance was made on the said 18th day of July, 1892. “That as a security for said loan, and as evidence of said indebtedness from the said the Syracuse Bamboo Furniture Company to this plaintiff, one Jacob C. Kenyon, 1 hen the president of said the Syracuse Bamboo Furniture Company the sum of $1,000, at the First National Bank of Baldwinsville, New York, for value received,with interest; and thereupon, and before the said note became due and payable by its terms, the said the Syacuse Bamboo Furniture Company, for value received, and for the purpose of securing said loan and advancement of $1,000, duly indorsed, transferred, and delivered to this plaintiff the said note, and that this plaintiff thereupon became, and now is, the holder and owner thereof.”

Upon the trial it was made to appear by evidence which stands uncontroverted that Jacob C. Ivenyon, who was the treasurer, and not the president, of the Syracuse Bamboo Furniture Company, was, at the time of the execution of the note mentioned in the foregoing allegation of the complaint, indebted to the company upon his stock subscription to the extent of $1,000; that the company was pressed for money with which to carry on its business; and that it was arranged between Kenyon and one Walter McMullen, who was the plaintiff’s cashier, that if the former would give his note to the company in payment of his stock subscription, the plaintiff would discount the same for the benefit of the company; that, in pursuance of this arrangement, Kenyon made and executed the note in question, and thereafter, as treasurer, indorsed the same in the corporate name of his company; and that thereupon the plaintiff took such-note, advancing the amount secured thereby to Kenyon, who deposited the same to the credit of the company, who had the sole benefit thereof. It further' appears that when the note matured the same was not paid, but was renewed, and was thereafter renewed from time to time until the 20th of September, 1894, when the last renewal note was given; each of such renewals being in form the same as the original note, signed by J. C. Kenyon, individually, and indorsed by the Syracuse Bamboo Furniture Company, “By J. C. Kenyon, Treasurer.” The case, it will therefore be seen, presented to the trial court, for its determination, but a single questioi: and that a question of law and not of fact; for it is conceded that if the plaintiff had a valid claim against the Bamboo Furniture Company for the money loaned upon the 18th day of June, 1892, these defendants are liable upon that claim, by reaason of a violation of the requirements of the statute relative to the filing of the annual report of the company. The defendants insist, however, that the plaintiff’s claim is one which cannot be enforced against the company for the reason that the note which lies at its founda ■ tion was received bythe company from the maker in direct violation of the statute. And in support of this contention the attention of the court is directed to section 42 of the stock corporation law which read as follows:

“ No corporation shall issue either stock or bonds except for money, labor done, or property actually received by the use and lawful purposes of such corporation.” Laws 1892, p. 1835.

It is undeniable that the provision of the statute does, in express terms, inhibit corporation organized under the laws of this state from receiving in payment for either stock or bonds which it may issue anything except money, labor performed, or property which may be actually and lawfully used by the corporation receiving it in the conduct of its business. And the object of the legislature in enacting this inhibitory provision was undoubtedly to relieve the full-paid stock of every corporation from any lien or liability for the purchase thereof, in order that it might represent to the company, as well as to the creditors, the actual money value of its paid up capital Gamble v. Water Co. 123 N. Y. 91-107, 33 St. Rep 88. It must be conceded, therefore, that in taking from Kenyon his note, instead of cash for the amount due upon his stock subscription, the company did violate the provision of the statute already adverted to; and therefore the serious question to 'be considered is, how does it affect the note which ivas transferred to the plaintiff, and how does it affect the plaintiff’s claim for the moneys advanced upon the security of that note? In determining this question it is to be borne in mind that this action is not brought, nor is it sought to be maintained, upon the note itself; for as we have seen, it is expressly alleged that the plaintiff loaned and advanced to the Bamboo Furniture Company the sum of §1,000, and that the note was received simply as security for such loan, and as evidence of the indebtedness of the company. It is likewise to be remembered that the company has received the full benefit of the money loaned, for the repayment of which its directors are now seeking to escape liability. With these facts confronting us, we fail to see any good reason why the plaintiff should not prevail in its action. It is true, as has already been stated, that this note was given in direct violation of an inhibition of the statue; but the contract which it represents violates no general principle of public policy, and is in no sense what may be termed malum in se. At the most, it is merely malum prohibitum, and however this may affect the note, as commercial paper, in the hands of a third party with notice, it certainly does not work a forfeiture of the money loaned by the plaintiff, even though it knew at the time of making the loan that the security upon which it was made was, in a sense, illegal. Oneida Bank v. Ontario Bank, 21 N. Y. 490; Tracy v. Talmage, 14 N. Y. 162; Bank of Salina v. Alvord, 31 N. Y. 473; Pratt v. Short, 79 N. Y. 437. This statement of the law which I think applicable to the case may rest upon two principles, either one of which is sufficient to support it. In the first place, the guilty party—the one whose act was in direct violation of the law—was the corporation, which, through its treasurer, took the note, instead of money, for the stock which this same treasurer had purchased; and the only sense in which the plaintiff can be said to be in pari delicto was in taking a note thus executed, with knowledge of the circumstances attending its execution. This hardly makes the plaintiff equally guilty with the maker, but it rather presents a case in Avhich the court may afford relief to the party whose guilt or responsibility is comparatively insignificant. Tracy v. Talmage, supra. But the second of the two principes to which reference has been made is one which is of pretty general application in cases of this character, and that is that, where a party has reaped the full benefit of a contract which has been performed in •good faith by the other party thereto, he can not be permitted to escape from his fulfillment thereof by insisting that in entering into such contract he violated the law. This principle has been applied to the defense of ultra vires in cases where, if that defense was to prevail, it would work injustice and accomplish a legal wrong; and it was thus clearly enunciated by Judge Allen in the case of Arms Co. v. Barlow, 63 N. Y. 62:

It now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the full benefit of the performance and of the contract. If an action cannot be brought directly upon the agreement, either equity will grant relief or an action in some other form will prevail. The same rule holds e converso. If the other party has had the benefit of a contract fully performer! by the corporation, he will not be heard to object that the contract and performance were not within the legitimate powers of the corporation.”

To speak of. corporate acts as ultra vires is but another of saying that in those acts the corporation has exceeded its functions, or has gone beyond the legitmate scope of its power; and that is practically Avhat the Bamboo Furniture Company did when it assumed to take Kenyon’s note, instead of his money, in payment of his subscription for stock. And having taken the note, and used the same as a means' of procuring money for carrying on its business, it Avould be the merest travesty of justice to permit it uoav, Avhen called upon to perform its contract Avilh the plaintiff, to insist that it should be relieved therefrom because, in taking the note from the maker, it exceeded the poAver conferred upon it by statute. We think that the learned trial justice committed no error in the direction made by him in the case, and that, therefore, the judgment appealed from should be affirmed

Judgment affirmed, with costs.

FOLLETT, WARD, and GREEN, JJ., concur.

HARDIN, P. J.

(concurring).—The Bamboo Furniture Company having receiAred the money of the plaintiff,—it having been placed to its credit, and draAvn from the plaintiff,—an- indebtedness arose thereby to the plaintiff. If it be assumed that the note taken by the company for stock Avas illegal, still the company remained indebted to the plaintiff for money had and received. When Pratt v. Short avas on trial before me at the circuit, I had occasion to express my views upon the right of a party someAvhat similarly situated to recover for money had and received, and my opinion is reported in 53 How. Frac. 506. That case passed on to the court of appeals, and the conclusion reached at the circuit was affirmed in 79 N. Y. 437. The same doctrine was laid down in Pratt v. Eaton, Id. 449, reversing 18 Hun, 293. In Duncomb v. Railroad Co., 84 N. Y. 201, those cases are referred to and approved. In Chapman v. Comstock, 58 Hun, 325, 34 St. Rep. 517, affirmed 134 N. Y. 509, 47 St. Rep. 650, I again had occasion to refer incidentally to the same doctrine, and to cite some additional cases. I think the conclusion reached by ADAMS, J., in his opinion is correct, and I therefore vote to affirm the judgment.


author: GREEN. J.

text:
    Jay Connell v. Charles S. Averill et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    <Düstom—Evidence —Terms oe contract.
    On an issue as to whether a hiring was for a year, or by the month, it is not competent to ask a witness whether there was a custom with reference to the terms of such hirings in the vicinit, .
    Appeal from Onondaga county court.
    Action by Jay Connell against Charles S. Averill and others to recover damage for the alleged wrongful discharge of plaintiff from defendants’ employment. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendants appeal.
    Arthur Beebe, for appellants.
    M. E. Driscoll, for respondent.
   GREEN. J.

—The appellants are proprietors of the Yates Hotel, in Syracuse. March 2, 1894, the respondent entered the employ of the appellants as train or head porter, and continued in such employ until July 10th of the same year, when appellants notified him that his services in that position were no longer desired, but that he could continue in their employ as house porter. The respondent refused to accept that position, and left the employ of appellants. He received his pay for the time he worked. After such discharge he came to appellants, and offered his services, claiming that he had been hired for the term of one year. The appellants refused to allow him to continue in their service in the position he occupied at the time of his discharge. This is for damages for not being allowed to serve his time and receive his compensation according to the contract as claimed by him. The controlling issue'of fact in the case was whether the respondent was hired -for the term of one year, as he claimed, or only by the month for an indefinite period, as claimed by appellants. The respondent testified that he was employed for the term of one year from the 2d of March as head or train porter in the Yates Hotel, and that he was to receive for such services the sum of $20 per month. He further testified that Avhen the contract was made one of the employes of the hotel was within hearing distance of conversation betAveen respondent and appellant Averill, with whom the contract was made. This employe was also sworn as a witness in behalf of respondent, an fully corroborated him as to the terms of the contract. Mr. Averill testified that the employe Avas not in a position Avhich would enable him to overhear the conversation be tween Averill and Connell; and that, if the employe occupied the position which he testified to occupying at the time of such conversation, the situation and surroudings were such that he could not have heard such conversation. It was agreed upon the trial that the jury should attend in a, body at the hotel, and examine the situation, location, and surroundings of the place where the contract Avas claimed to haAre been made, and also the place Avhere the witness testified he was at the time at the conversation, so that the jury might satisfy themselves as to the truth or falsity of the evidence of the employe. Before the close of the trial the jury-did so vieAV the premises. The defendant Averill, Avho was-the only other person present at the time of the con verstion betAveen him and Connell, when Connell claims the contract was made, was SAVorn in his oaaui behalf concerning that transaction. He testified: “I had a conversation with Connell about the first or second of March with reference to hiring him. Q. What Avas that conversation? A. Well, it Avas just about”as he stated it.” Upon being further questioned by his attorney, and asked to give his version of it, he testified that he asked Connell if he would like the position of head or train porter; that he said he would like it; and that he then told Connell the wages Avould be $20 month, and as long as he filled the position satisfactorily he could retain it, and that nothing Avas said about employment for a, year. The defendant also introduced in evidence the receipt given by respondent to appellants for services to August 1st in full. It Avill be seen that the respondent was corroborated by a Avitness, Avho, so far as appears from ths record, Avas disinterested; and, not only that, the jury was alloAved to vieAV the premises, and thus verify the statement of the-witness as to whether he was in a position to hear the conversation between Connell and Averill. TJpon the evidence and the observation thus made the jury found upon that question in favor of the respondent. The verdict thus rendered upon conflicting evidence should not be disturbed.

The appellants contend that this judgment should not be allowed to stand, as it appears that at the time of respondent’s discharge lie was offered another position by the appellants, and that, although the contract was for one year, as contended by respondent, the appellants having offered him another position, he ivas bound to accept, and thus relieve appellants from any damages occasioned by his discharge. If this position so tendered him was of the same general character, and the duties thereof were such as could have been performed by the respondent, it would have been his his duty to accept the same; otherwise he would have been precluded from claiming damages under the contract. It appears from the evidence in the case that the position tendered him at the time of his discharge was of a more arduous character than the one respondent occupied. The respondent testified upon that subject that the house porter was required to lift all the heavy trunks, and that the head or train porter drove the bus, and solicited passengers at the depots; and it appears from the evidence, uncontradicted, that at that time the respondent was suffering from a breach, occasioned by a fall from the omnibus while-in the employ of appellants, and that he ivas unable by reason thereof to perform the duties of the position which was tendered him by appellants. He further testified: “I told Mr. Averill I would not take that, because I was not hired for that Avorlc, and that I Avas not able to do the lifting.” This, evidence Avas properly submitted to the jury by the learned county judge in his charge. The jury Avas charged that it might take into consideration the offer of the appellants and the refusal of respondent to accept the offer of that position, and his explanation for not accepting it, and that it was for the jury to consider this evidence with the other evidence of the case, as bearing upon the question of damages. I am of the opinion that a proper disposition was made of this branch of the case.

TJpon the trial the appellants produced a witness Avho testified that he resided at the Globe Hotel, in Syracuse, and that he had been a porter in the hotels of Syracuse for 13 years ^ that he took respondent’s place as porter of the Yates Hotel. He Avas then asked by appellants’ counsel, as follows:

“Q. Do you know the custom in Syracuse Avith reference to the terms of hiring porters in hotels? (This Avas objected to as incompetent, irrelevant, and immaterial.) The Court» I would like to hear from you, gentlemen. I held this morning that the question was admissible to show that they received their board. Mr. Driscoll: I know you did, just the same as it is customary for a hired girl in the kitchen to receive board when she is Avorking; but it is not admissible to sIioav that they don’t hire men for a year, or that they don't hire a hired man for a year, because that goes right to the contract. Mr. Thorne: The offer is to shoAV that the common, ordinary custom among hotel porters at that time AAras that the hiring was by the month, and not by the year, hiring Avas unheard of. The Court: Ask your question. Mr. Thorne: Q. I ask him if he Iciioavs the custom Avitli reference to the term of hiring. (Objected to as immaterial, incompetent, and irrelevant. Objection sustained. Exception by defendants.)”

The ruling was not error. The vital question of fact between these parties was the term for Avhich respondent Avas hired. He contended that the contract Avas for one year; the appellants, that it Avas only from month to month. The contract, as stated by each of the parties, Avas clear and explicit as to the term of service. The appellants could1 not change "the terms of an unambiguous contract by shoAving that the custom was contrary to the clearly expressed intention of the contracting parties. “When the terms of a contract are clear, unambiguous, and valid, they must prevail, and no evidence of custom or usage can be permitted to change them.” Hopper v. Sage, 112 N. Y. 535, 21 St Rep. 491; Wadsworth v. Allcott, 6 N. Y. 64; Wheeler v. Newbould, 16 N. Y. 392. Appellants’ counsel argues that this evidence should have been admitted, because the court admitted evidence of a similar character when offered by the respondent, under appellants’ objection and exception; and that the court Avas wrong in one instance or the other. There Avas no exception to the admission of the evidence referred to, and therefore that question cannot be reviewed upon this appeal. Because the court erred in the admission of evidence in one instance during the trial of an action furnishes no valid reason for. reversing its decision in excluding incompetent and irrelevant evidence.

A futher exception only remains to be considered. Appellants’ counsel asked the court to charge that:

“If the jury shall find that the duties this position of hall or inside porter that was offered to the plaintiff Avas of substantially the same character, and no more arduous than the position for which he was hired, that in that case, cannot recover. The Court: I decline to charge in the words asked, but I do charge in answer the language in the case of De Loraz v. McDowell, 68 Hun, 172, 52 St. Rep. 67: The rule of law contended for by the complainant is undoubtedly sound that when a servant is reasonably discharged he must make reasonable efforts to obtain other employment, and credit the master with the amount earned by him in reduction of damages. He is not bound to accept employment of a different character, though it need not necessarily be of exactly the same kind, or at the same salary.’ (Exception by defendants.)”

We are of the opinion that the court committed no error in this charge. The charge as made is applicable to the case and clearly covered the subject and the question upon which the court had been called to charge the jury. The learned counsel, in asking the court to make the charge as he did, omitted an important fact bearing upon the subject-matter as to which the court was requested to charge, and that was that, by the uncontradicted evidence, the respondent was unable to perform the duties of the position tendered him. He also testified that he had so informed these appellants, and that he gave it as a reason for not accepting that position. We think the case was presented to the jury fairly and sufficiently favorably to these defendants upon the evidence. An examination of the exceptions taken by the appellants’ counsel discloses no error which should lead us to disturb the verdict rendered by the jury.

The judgment and order should be affirmed, with costs.

All concur.


author: GREEN , J.

text:
    Galusha P. Eames v. E. Merriam Bagg.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1986.)
    Assignment for benefit of creditors—Powers of assignee—Stipulation.
    An assignee for benefit of creditors, who was plaintiff in a pending action on a note payable to the assignor, entered into a stipulation with defendant, who had instituted a proceeding in the county court to enforce a claim against the assigned estate, that plaintiff should enter judgment for the amount of the note, but that no execution should be issued until the determination of the defendant’s claim against the estate, and that the amount awarded to defendant should be applied on the judgment, is binding on the assignee, and the effect cannot be avoided by the fact that the county judge was absent on the day sat for hearing defendant’s claim, but the proceeding was not discontinued.
    Appeal from Lewis county court.
    Action by Galusha P. Eames, as trustee, against E. Merriam Bagg. From an order denying a motion to set aside an order in supplemental proceedings, requiring defendant to appeal and be examined before a referee on a judgment in favor of plaintiff, and to set aside the execution issued on such judgment, defendant appeals. ■

      Walter Ballou, for appellant.
    H. H. Ryel, for respondent.
   GREEN , J.

Previous to 1891, Alson Wider made a general assignment for the benefit of his creditors to Charles A, Wider, as assignee of the assigned estate. The assignee entered upon the discharge of his duties as such, but died before he had "executed his trust, and plaintiff was appointed trustee to execute the provisions of a trust contained in the general assignment. In April, 1894, the defendant, claiming to have performed services relating to the assigned estate, at the request of Charles A. Wider, the former assignee, presented a petition to the county court of Lewis county; and upon said petition a citation was duly issued, requiring this plaintiff to appear before the county court to answer the application made by defendant to have his compensation fixed for the services which he had rendered the former assignee' *n behalf of and in the interest of the assigned estate. Upon the return day of said citation, the parties appeared, and the proceedings were duly adjourned to May 28, 1894, by consent of the parties. Upon the adjourned day, the parties in that proceeding appeared at the time and place fixed by the adjournment; but the county judge did not attend at such time and place, and, for that reason, no-proceedings were had upon said application. While that proceeding was pending, an action was also pending in justice’s court, brought by plaintiff against this defendant, to recover the amount of a promissory note made by defendant to the assignor. Issue had been joined, and the trial thereof duly adjourned to June 1, 1894. On such adjourned day the parties to that suit appeared before the justice, and the following agreement in writing was made between the parties:

“In Justice’s Court.
“ Galusha P. Eames, as Trustee, etc., versus E. Merriam Bagg.
Before E. McCarty, Esq., Justice.
“It is hereby stipulated that E. McCarty, justice, may enter judgment in the above-entitled action, in favor of plaintiff, against defendant, for the sums and interest thereon as asked in complaint, with costs, subject to following agreements: (1) That no transcript or execution shall be issued upon said judgment until after the hearing and determination by the Lewis county judge of the application now pending to fix the compensation of E. Meriam Bagg as attorney in general assignment of Alson Wider to Charles A, Wider. (2) That, if so directed by the decision on said application, said compensation and expenses shall be applied on said judgment. 1 .
“Dated June 1st, 1894. G. P. Sames, as Trustee, etc.,'
Plaintiff. i
E. Merriam Bagg, Defendant.53

The judgment was thereupon, and upon said stipulation, entered, and such agreement has not been waived or modified in any manner by defendant, and the same remains in full force and effect.

It is claimed by this defendant that his disbursements and the reasonable compensation for services rendered in behalf of the assigned estate will more than balance the amount of the judgment entered against him in justice’s court. On the 22d day of December, 1894, an affidavit and order in proceedings supplementary to execution were served upon defendant. That was the first notice or knowledge had by the defendant that a transcript of that judgment had been filed, or that an execution thereon had been issued. The defendant has personal property in his possession and belonging to him, not exempt from levy and sale under an execution, in the county of Lewis, from which an execution on such judgment could be collected. The defendant made application to set aside the execution and the order, and plaintiff opposed the same, on the ground that the proceedings before the county judge, mentioned in his agreement with the defendant, Bagg, “had gone down,” as there was no appearance on the adjourned day, and no attempt to revive the proceedings aftei the judgment was recovered, and on the further ground that the agreement made by the plaintiff as trustee could not bind or change or affect the assigned estate in his hands, and that the claim of defendant, if any, was against Charles A. Wider personally, and must be collected, if at all out of his estate. The situation when the agreement was made was this: Defendant had a claim for services and disbursements rendered and paid for the former assignee. The plaintiff, as substituted trustee, held the promissory note of the defendant, made by him to the order of the assignor, and which came into the hands of this trustee of the assigned estate. The defendant instituted proceedings to have the amount of his claim fixed and allowed as a claim against the estate by the county judge. The plaintiff brought an action against defendant, in justice’s court, at about the same time, to enforce the promissory note which he held as assignee. The action and the proceedings weréJ pending on May 28, 1894. The proceeding bpfore the county judge had been adjourned to that date, and the action before the justice had been adjourned to the 1st day of June following. The judge was absent on the 28 th day of May, and, consequently, no proceedings were had. If he had been present, the defendant would have been entitled to have liis claim passed upon, and that question could have been finally decided and settled before June 1st. By no act of this defendant were the proceedings before the county judge discontinued. No proceedings were had, because the officer before whom they were noticed was absent. This was no fault of the defendant. Those procedings were not discontinued, and could at any time thereafter have been revived by any party interested therein. Under these circumstances, the parties entered into this written agreement, by which the defendant withdrew his defence and waived liis right to interpose the offset or counterclaim to 0 the extent of his services and disbursements, which were more than sufficient to extinguish the amount of the claim held by the assignee against him. The parties defined the question which was reserved, and prescribed the remedy and the court for obtaining the solution of the question which had been raised. Instead of trying the question in justice's court, they agreed that it should be presented and submitted to the county judge, where proceedings had already been instituted to have the question passed upon. It was thought, and reasonably, that that question should be submitted to the judge of the county court, where all matters pertaining to the assigned estate were to be disposed of; and, being a reasonable and proper agreement for the parties to make, it should be enforced by the courts. The assignee had a right, at any time after that agreement ivas made, to have the question presented to the county judge, and disposed of. He had no right, under this agreement, to proceed contrary to its terms, and file the transcript and issue the execution which was filed and issued. The defendant in that suit had interposed an answer: He claimed to have an offset to the entire claim of the assignee. The plaintiff had the title to the assigned property, and he was seeking a judgment against defendant. Plaintiff had authority, therefore, to contract with reference to the action which he had instituted, and to stipulate as to the manner in which the issues raised in that action should be disposed of. That contract can be enforced against him, because he made it, and because it was a contract which he was authorized to make, and which would be binding upon the estate. Johnston v. Wallis, 41 Hun, 420, affirmed in 112 N. Y. 230; 20 St. Rep. 567; Bostwick v. Beach, 103 N. Y. 414; 9 N. E. 41; Barry v. Lambert, 98 N. Y. 309; Wheeler v. Wheeler, 9 Cow. 34. It is no excuse for him to say that the county judge will not decide the question, which it was agreed should be presented to him, favorably to this appellant. With that decision respondent has nothing to do. He cannot agree to the submission of this question to the county judge and then himself decide the question, and thus excuse himself from fulfilling his agreement, after taking ' advantage of the portion thereof beneficial to himself, and not restoring defendant to the same position he occupied before making the agreement. It is the duty of plaintiff to fulfill his contract, and await the decision of the tribunal to which he has stipulated the questions in controversy shall be submitted for decision. Furthermore, we entertain no doubt that, under the circumstances of the case as presented by the record here, this defendant had the right to offset, to the extent of the claim against him, the services rendered and disbursements made by him in the interest of and for the benefit of the assigned estate, provided the same were necessary and reasonable.

It appears to me that the decision in Davis v. Stover, 58 N. Y. 473, is decisive of this question. That action was brought by plaintiff, as receiver of the Ocean National Bank, of the city of New York, against the defendant, as indorser upon four promissory notes, which were part of the assets of the bank, and came into the hands of plaintiff as such receiver. The defendant set up as a counterclaim a claim for services rendered by him upon the employment by plaintiff as receiver for the benefit of the estate. Upon the trial evidence was given in support of the counterclaim; but upon motion of plaintiff’s counsel, the same was stricken out, and defendant’s counsel excepted. The court of appeals, in reversing the judgment, says:

“A receiver or trustee has the right to defray, out of the trust fund in his hands, expenses necessary for its protection; and, where a debtor to the estate is employed to perform necessary services for its benefit, we see no objection to the trustee or receiver applying, to the payment of the expense thus incurred, the demand "which he, as receiver or trustee, had against the person employed. The same result could be accomplished by paying the party for his services, and immediately taking back the money so paid in satisfaction of the debt due the estate. This would seem to be an idle ceremony. In either case the true point of inquiry would be the propriety and bona tides of the expenditure and the reasonableness of the amount paid.”

The order should be reversed, with $10 costs and disbursements, and motion of defendant granted, with $10 costs, to be paid out of the assigned estate. All concur.


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    William C. Greene, as Receiver, v. Niagara County et al.

    (Supreme Court,, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Trusts—Security for loan and trust funds—Public officer.
    Under an agreement between a county treasurer and a bank, pursuant to which the treasurer lends county funds to the bank, and the bank transfers to the treasurer a note and draft in payment of or as security for the loan, the treasurer takes the note and draft for the purpose of restitution of the money illegally loaned, and he cannot divert them to any other use without the consent of the county.
    3. County treasurer—Borrowing money—Overdrawing bank account.
    A bank which permits a county treasurer to overdraw his account thereby lends money to the treasurer individually, and it has no claim against the county for the amount of the overdraft.
    Appeal from judgment on report of referee.
    Action by William C. Greene, as receiver of the Merchants’ Bank of Lockport, against the county of Niagara and others, to establish the claim of plaintiff to recover a note and draft, or the proceeds thereof, to an amount sufficient to satisfy the claim of the Merchants’ Bank of Lockport against one John J. Arnold, for moneys advanced by said bank to said Arnold, at his request, as treasurer of the county of Niagara, to pay obligations owing from him as treasurer .to said county. There was a judgment in favor of plaintiff, and defendant county appeals.
    John H. Leggett, for appellant.
    David Millar, for respondent.
   ADAMS, J.

The established facts in this case disclose that upon the 6th day of October, 1893, the plaintiff was duly appointed receiver of the Merchants’ Bank of Lock-port, and that upon the 19th of January, 1891, he took possession of the assets and property of the bank, and still retains the same in his custody; that prior to March 1, 1890, the Merchants’ Bank was known as the First National Bank of Lockport, but upon that date it was changed from a national to a state organization; that, for nearly six'years prior to the appointment of such receiver, one John J. Arnold was the treasurer of Niagara county, and had deposited the county funds, in either the Merchants’ Bank or the First National Bank, of each of which he was cashier; that, at the time the bank was changed from a national to a state organization, it held certain commercial paper whch, for some reason, it was thought necessary or desirable to retire, and which amounted to $12,000 or $15,000. Certain officers of the bank thereupon applied to Arnold to loan them, from the county funds, a sufficient sum to take up this paper, which application was granted. Thereafter J. S. Helmer and J. H. Helmer, who were, respectively, the president and vice president of the bank, delivered to Arnold their note for $4,669.31 payable to his order; and later on J. H. Helmer drew his certain draft for $5,130.70, upon Charles L. Easton, of Chicago, 111., payable to the order of the Merchants’ Bank of Loclcport, which draft was also .delivered to Arnold, and that, together with the note, was accepted by him as security for, or in payment of, the moneys which the bank had theretofore borrowed of him. This note and draft were placed by Arnold in a pocketbook containing valuable papers belonging to the county of Niagara, which thereafter, and upon the 10th of October, 1893, was, with its contents, delivered to the defendant Ellsworth. In 1893, and prior to the 11th of October in that year, Arnold had been permitted by the bank to overdraw his account as treasurer to the extent of $6,428.83; and upon the last-mentioned date, when the the insolvency of the bank had become pretty well established, Arnold was induced to execute an assignment to it of the Helmer note and Easton draft, which were subsequently paid to the defendant Ellsworth, the avails thereof being held by him until it could be determined to whom they belonged. This action is brought upon the theory that the note and draft in question were assigned to the bank as security for Arnold’s overdraft, and that their avails, or so much thereof as may be necessary for that purpose, should be applied in payment of such overdraft; and the learned referee has found, as a conclusion of law, that the plaintiff, as receiver, is entitled to enough of such avails to make good the overdraft and the interest thereon, the remainder thereof being awarded to the defendant the county of Niagara.

We are unable, after giving to this case a most careful and •critical examination, to reach a conclusion which harmonizes with that of the learned referee. It is of course, too plain for controversy, and no one has been heard to say to the contrary, that the original transaction between Arnold and the bank, which resulted in the loan of a sum of money from the former to the latter sufficient in amount to retire the objectionable paper, was, to put it very mildly, without authority, and in violation of Arnold’s duty as treasurer of the county of Niagara. The money loaned, confessedly, belonged to the county, and not to him; and he had no more right to loan it to the bank than he had to invest it in stocks. This the officers of the bank doubtless knew, as well as he, and both the parties must have been conscious that the entire transaction Avas illegal, if not criminal, in its character. Noav, this fact, Avhile it deprives the plaintiff, avIio, so far as this action is concerned, stands precisely AAdiere the bank would have stood if no receiver had been appointed, from invoking the aid of a court of equity on his attempt to obtain any benefit from a transaction Avliich Avas clearly dishonest, is, nevertheless, one which should make the court anxious and alert to mold the relief to be aAvarded so as to adapt it to the circumstances of the case, and prevent, if possible, any harm or loss resulting to the county of Niagara, AArhose funds have been thus improperly diverted. 2 Story, Eq. Jur. sec. 1258; Perry, Trusts, sec. 829; Lench v. Lench, 10 Ves. 511; Lewis v. Maddocks, 17 Ves. 56.

The vieAV, therefore, which we are inclined to take of the matter is that notAvithstanding the bank borroAved the money of Arnold personally, and transferred the note and draft to him individually, yet inasmuch as it Avas Avell lcnoAvn to the officers AArho procured the loan that the moneys belonged to the county, and not to Arnold, the debt must be treated as one OAving to the county; and that, consequently, Avhen Arnold took the note and draft, either in payment of or as security for the money thus loaned, he took them impressed Avith a lien and trust, for the purpose of recompense and restitution of the moneys illegally loaned, and could not divert them to any other use without the consent of the county. In other Avords, the note and draft represented and stood in the place of so much money which had been virtually embezzled; and, as the money belonged to the county, so did the securities Avhich represented it. Newton v. Porter, 69 N. Y. 133; Ferris v. Van Vechten, 73 N. Y. 113; Cook v. Tullis, 18 Wall. 332. In this vieAV of the case, it becomes unimportant Avhether or not the note and draft Avere delivered to the defendant EllsAArorth, to be held by him in trust for the county, because Arnold had no right, to execute the assignment of October 11th, and the bank acquired no additional right in consequence of its execution.

There is, hoAvever, another reason Avhy Ave think the avails of this note and draft should not be employed in the manner directed by the learned referee, Avhieli is that the overdraft in question was in the nature of a loan to Arnold individually. He, as treasurer, had no right to borroAV money upon the credit of the county of Niagara; and, Avhen the bank alloAved him to overdraAV his account, it Avas upon his individual responsibility. Of course, if Arnold had in good faith used his personal credit to obtain moneys to pay the obligations of the county, it is not altogether improbable that the county Avould be required to reimburse him therefor. But, as betAveen him and the bank, it Avas AArholly a personal matter, in which the county had no concern. Again, in a proper case, and under certain «onditions, it is not conceivable that a court of equity might deem it advisable to apply the avails of the note and draft to the payment of the overdraft; but, before doing so, it would, at least, require it to be established beyond peradventure that the same was in all respects bona fide; that 'the county had received the full benefit of it; and that as between Arnold and the bank, there were no existing equities to be considered and adjusted. But the facts here presented do not establish a case for the application of any such equitable principle, and we consequently think the learned referee reached an erroneous conclusion, which makes it necssary that a new trial of the case should be had.

Judgment reversed. New trial ordered, with costs to abide the event. All concur.


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    Howard B. Hayden v. Sely C. Hayden.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Action—Breach or contract to support infant.
    An action will not lie for breach of contract by defendant to support plaintiff, an infant, during infancy.
    Appeal from special term, Onondaga county.
    Action by Howard B. Hayden, an infant, as a poor person, by Henry Burlew, his guardian ad litem, against Sely C. Hayden, to compel specific performance of an alleged verbal contract between defendant and one Susan Hall, a paternal aunt of plaintiff, by which defendant agreed to adopt plaintiff, and to recover damages of refusing to perform such alleged contract. From a judgment of nonsuit, plaintiff appeals.
    W. E. Pratt, for appellant.
    George R. Cook, for respondent.
   GREEN, J.

The material allegations contained in the complaint are that the, parents of the infant plaintiff died in or about the year 1880, when he was of the age of about six years that he then lived with Mrs. Hall, his aunt, until the year 1884, Avhen she entered into a contract with the defendant, whereby, in consideration that she would surrender the care and custody of the infant to the defendant, he agreed to adopt the infant, and to support, maintain, and provide, and to treat and care for him, in all and every respect, as his own son; that, in pursuance of such agreement, Mrs. Hall surrendered to defendant the custody of the infant, who thereupon lived with, and was maintained by, defendant, and was treated in all respects as his son, until March, 1894, when he had attained his nineteenth year; that the infant’s name was changed to Hayden; that in the month of March, 1894, the defendant refused to any longer support the infant, and exclude him from his dwelling. The relief demanded in the complaint is that the defendant be compelled to give the infant such sums of money as to the court shall seem just and sufficient for his support and maintenance, and for such other relief as the court shall deem just.

It appears from the evidence that the alleged agreement was oral. It is further disclosed by the record that the infant’s father died in 1880, and his mother in 1882. He then lived with his aunt Mrs. Hall three months, when he was placed in an orphan asylum by her husband, and remained there two months. He Avas then taken therefrom by Mrs. Chasmer, a relative of his father, and remained with her until he was taken into defendant’s family. The nearest relatives of the plaintiff at the time of the alleged agreement of adoption were his brother, three sisters, and a paternal grandmother. There Avere three other aunts besides Mrs. Hall. No guardian of the infant had ever been appointed It is conceded that defendant faithfully fulfilled Ms promise or agreement to support, maintain, and educate the plaintiff, and to treat him as his oavu son, up to the time he had attained his nineteenth year. Plaintiff’s counsel says that plaintiff “continued in defendant’s family under this agreement, brought up in idleness and luxury, Avith no idea of self-support.” Plaintiff testified that $1,000 or $1,200 a year would be a reasonable amount for his support in the manner he had been supported by defendant. We have not been cited to, nor are we able to find, any authority for the maintaining of an action of this character, nor can we conceive of any principle of law upon which it may be upheld. It is a matter of no consequence to determine Avhether the agreement should be limited to the time of the plaintiff’s majority, or to the time when he became of sufficient capacity to, or ability to, support himself. Assuming, hoAvever, that the defendant’s obligation continued during the plaintiff’s infancy, the facts are nevertheless Avholly insufficient to establish a cause of action. There is no proof of any breach of the agreement as alleged in the complaint. The breach of the agreement is that the defendant did not, after plaintiff attained his nineteenth year, support and maintain him as he Avould his own son. Non constat but that defendant, under the same state of circumstances, would have compelled his own son to support himself. Surely the plaintiff can claim no other or greater privilege, benefit, or advantage than might be lawfully or rightfully refused by defendant to his own son. It would be a novelty in the law for a son to maintain an action against his father to compel him to furnish supplies of food and clothing, or to advance him the requisite funds for that purpose. A parent is bound to support his minor child, and is entitled to his services and to receive earnings. But here the defendant is not entitled to the plaintiff’s services or his earnings, and yet it is contended that defendant is under a legal obligation to support the plaintiff in idleness and luxury. There is no reciprocity here, nor any consideration whatever. The evidence shows that defendant has faithfully fulfilled all the obligations or duties that could be reasonably expected or required of him.

The respondent insists that this appeal should be dismissed on the ground that the appellant dannot prosecute the appeal as a poor person. It is provided by section 1294 that any party aggrieved may appeal from a judgment or order. The appellant had a right to appeal from the judgment herein, but he cannot avail himself of the privilege of prosecuting the appeal as a poor person, so as to be absolved from the liability for costs of the appeal. Morse v. City of Troy, 38 Hun, 3.0'L The judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.