author: Bookes, J.:

text:
    THE PEOPLE ex rel. WM. H. VAN TASSEL, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF COLUMBIA, Appellant.
    Sheriffs— Chapter 495 of 1847 — fees of officers in criminal proceedings under — by whom audited — Common council of Hudson — power of to audit claims — § 97, chapter 468 of 1872.
    The term “ criminal proceedings,” as used in chapter 495 of 1847, providing for the payment, by the several towns and cities, of all fees and accounts of magis trates and other officers for criminal proceedings, instituted for certain offenses committed therein, embraces all necessary and legal actions by magistrates and ministerial officers having in view the punishment of public offenders and violators of public rights and duties, as distinguished from civil injuries.
    Where the sheriff of the county of Columbia rendered services in receiving, discharging and boarding prisoners committed to jail by the police justice of the city of Hudson for offenses committed therein, none of which were felonies, 'held, that even if some of the cases in which they were rendered did not fall within the strict definition of “ criminal proceedings,” yet as they were all rendered in other than civil proceedings, and in the line of his official duties he was entitled to compensation therefor.
    A just allowance in such cases would be the amount fixed by statute for similar services in other proceedings.
    Under section 97 of chapter 468 of 1872, providing that the common council of the city of Hudson shall be “ the board of auditors 'to examine the accounts of officers of the city, with the same powers and shall proceed in the same way as is prescribed by law for the board of town auditors in towns,” the common council is not restricted to the examination and audit of the accounts of “officers ” of the city, but it is vested with all the powers possessed by the board of town auditors of towns, and it is its duty to audit bills presented by the sheriff of Columbia county for services chargeable under the act of 1847, upon the said city.
    Appeal from an order of the Special Term, granting a writ of peremptory mandamus requiring the board of supervisors of Columbia county to allow a claim presented by the relator, as sheriff of said county. His claim of $2,548.75 was made up of items for fees in receiving and discharging, and for board of prisoners committed to jail by the police justice of the city of Hudson in cases not felonies, but principally in cases of intoxication in public places; of vagrancy and of violations of ordinances of the common council of the city. All the charges related to proceedings in which the offenses punished or investigated occurred in the city of Hudson.

      Tbe board of supervisors refused to audit or assess the claim, or any part of it, on the ground that the items thereof were not county charges, and had not been audited and allowed by the “ board of auditors ” of the city of Hudson; and that it was made unlawful for their body “ to audit or allow any account chargeable to said city.” The Special Term held their refusal to audit and to assess the claim erroneous and improper, and granted the writ of mandamus as demanded. From the order granting such writ an appeal was taken to the General Term.

      M. P. Andrews, for the appellant.

      G. P. dottier, for the respondents.
   Bookes, J.:

We do not understand that the claim of the relator includes any illegal or improper charge. The items of which it is composed are such as the law authorizes, and the bill was duly verified. The question is, by what public body should it be audited and allowed, and how may payment be enforced ? Are the items subjects of town or county charges ? In so far as the claim of the relator is made up of legal fees and just matters of account “for criminal proceedings,” the case would seem to be covered, to a very considerable extent, if not entirely, by the act of 1845,. amended in 1847. That act was enacted, in part, to compel the several towns and cities to pay the expenses incurred in cases where the offenses were committed therein respectively, and is as follows: “All fees and accounts of magistrates and other officers, for criminal proceedings * * * shall be paid by the several towns or cities wherein the offense shall have been committed, and all accounts rendered for such proceedings shall state where such offense was committed, and the board of supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts.”

The exceptions to this general expression, contained in this act, need not be here noticed, inasmuch as none of the items of charge in the relator’s bill come within them. Now, it will be seen, on examination of the relator’s account, that the charges are principally for fees and accounts incurred in criminal proceedings within the plain intent of that statute. The language employed should'be accepted in its more liberal and extended signification, with a view to carry out the manifest purpose which the legislature had in view, to wit: to charge upon towns and cities respectively the expenses incurred therein, in proceedings to enforce laws relating to criminal or quasi criminal matters. So, “ criminal proceedings ” were evidently here intended to embrace all necessary and legal actions by magistrates and ministerial officers, having in view the punishment of public offenders and violators of public rights and duties as distinguished from civil injuries. In the popular mind such persons are criminals, and proceedings against them on behalf of the people with a view to their punishment are deemed criminal proceedings.” Perhaps some few of the items of chai-ge in the relator’s bill may not fall strictly within the letter of the law, giving the terms “ crime” and “criminal” their strictest legal definition, •but all of them were incurred in other than civil proceedings, and were proper subjects of compensation, as they were necessarily incurred by the relator in the line of his official duties. We fully agree with the learned judge in his remarks at Special Term, that there is no justice in saying that the relator should not be paid for services which, as a public officer, he was bound to perform, and that under the general power given to auditors, a board of audit might allow a reasonable compensation for such services, and that a sound discretion might indicate as a just allowance in such cases, what was fixed by statute for similar services in other instances. These remarks have application to but few of the items, for most of them pertain unmistakably to criminal proceedings, and all are believed to fall within the provision of the act above cited. So it would seem that the items of charge in the relator’s bill were proper subjects of audit under the act of 1815, amended in 1847; and if so, then according to that act the bill was legally assessable upon the city of Hudson. The act declares that the fees and accounts, as therein specified, shall be paid by, and assessed upon the several towns or cities wherein the offense shall have been committed. But the bill for such fees and accounts was first to be audited and allowed; and the question now arises, on whom did this duty devolve? If sound in the conclusion above reached, the relator’s claim was against the city of Hudson. When audited it would be a charge upon that city, which by its charter was to be regarded and treated as one of the towns of Columbia county. Now, on what officers or public body did the law impose this duty, that is, the duty of auditing bills against the city, regarded for this purpose as one of the towns of Columbia county % The general statutes of the State provide for a board of town auditors for the purpose of auditing and allowing the accounts of all charges and claims payable by their respecti/oe towns.'” (1 R. S. [6th ed.], 845, § 65.) The board is required to meet annually for the purpose of auditing and allowing such accounts (Id., § 66), and to certify duplicates of the audited bills, one to be delivered to the supervisor of the town, to be by him laid before the board of supervisors, of his county at their annual meeting (Id., § 67); and that board is required to cause the sum so audited, allowed and certified “ to be levied and raised upon said town ” (Id., § 68), and the supervisors have no discretion but to direct tfie amount to be so levied and raised. (The People v. Supervisors of Queens, 1 Hill, 195-199.) By the city charter (§ 97), the common council of the city of Hudson is made the board of auditors to examine the accounts of officers of the city, with the same powers, and shall proceed in the same way, as is prescribed by law for the board of town auditors in townsand further it is provided that it shall not be lawful for the board of supervisors of the county of Columbia to audit or allow any account chargeable to said city.” Here then was created a board of audit for the city, with the same powers, and it was to proceed in the same way, as prescribed by law for the board of town auditors in towns. Thus this board superseded and took the place of a town board as to all accounts against the city, and hence it devolved on it to audit the relator’s account, which, as we have seen, constituted a claim against the city. This would follow from the provision of the charter, which vested the common council, as a board of audit, with the same powers and duties devolving uy law upon the board of town auditors, to wit, the auditing and allowing “ the accounts of all charges and claims payable by their respective towns.” It is suggested that section 97 of the charter above alluded to confers the right of audit upon the common council, only as to ((the accoimts of officers of the cityf and that the sheriff is not such officer. But waiving what might perhaps be urged, that in giving fair and just effect to the intent of the legislature, the sheriff, as regards these matters of town (or city) charges, should be deemed to be an officer of the city, it is manifest that the city board of auditors were vested with the full powers of town auditors in their respective towns. This board was to examine the accounts of officers of the city, some of whom would be other than those of towns, with the same powers, etc., prescribed by law for town auditors: that is, that the common council, as a board of auditors, should have the power to examine the accounts of officers of the city, and should exercise the same powers “prescribed by law for the boa/rd of town auditors in towns’’ This construction and interpretation of the law seems reasonable, in view of its manifest purpose and of the several sections relating to the subject. The claim should be audited and allowed before the amount should be levied and assessed. The right to audit or allow it was taken from the board of supervisors by explicit enactment. There was no other body than the city board of auditors having authority to examine and allow it, and it is believed that such board has the requisite authority under the city charter, which, by fair intendment, if not in express terms, vests the common council, as a board of auditors, with the same powers prescribed by law for the board of town auditors in towns. If so, then it devolves upon such board to audit and allow “ the accounts of all charges and claims payable'1'’ by the city. (Sec. 65, supra.) It is suggested that such construction will necessitate the making out of bills by the sheriff, against the county and the various towns as well. But there is neither difficulty or hardship in this, inasmuch as that officer has the data at hand to answer this requirement.

If the conclusions above reached be sound, the order of the Special Term granting the writ of mandamus against the board of supervisors was improperly granted. The relator’s claim had not been audited and certified to that body as required by law. That body had no right or authority to audit or allow the claim ; nor had it right or authority to levy and raise the amount, until it was legally audited and allowed.

The order appealed from must be reversed, and the motion for the writ denied; but the questions considered being of a public character, new and somewhat intricate, there should be no costs allowed to either party.

The order appealed from reversed, and the motion for a mandamus denied, without costs.

Learned, P. J., and Boardhan, J., concurred.

Order reversed and motion for mandamus denied.


source: Caselaw Access Project

author: JBooKes, J.:

license: Public Domain

text:
    PATRICK LILLIS, Respondent, v. CORNELIUS O’CONNER, Appellant.

      Action for assault and battery — Oode, §304 — costs—-when title to real property vmdlmed.

    In this action for an assault and battery, the defense was: (1) general denial, (2) son assault demesne, (3) justification in defense of defendant’s real property. The plaintiff recovered a verdict of six cents, and having obtained a certificate from the county judge that the title to real property was put in issue by the pleadings and came in question upon the trial, he taxed full costs. Held, that this was proper, and that a motion to strike from the judgment all costs in excess of six cents was properly denied.

      Dinehamt v. Wells (2 Barb., 432) followed.
    Such certificate is conclusive upon the taxing officer, to show that the title to land came in question upon the trial.
    Appeal from an order of the County Court of Cortland county, denying a motion to strike from the record the plaintiff’s costs, except six cents, the amount of the verdict.
    The action was assault and battery, brought in the County Court of Cortland county. The defense interposed by the answer was: (1) general denial; (2) son assault demesne; (3) justification in defense of defendant’s possession of his real property. On the trial the plaintiff had a verdict of six cents. The plaintiff obtained a certificate, signed by the county judge, that the title to real pi’op-erty was raised and put in issue by the pleadings, and came in question on the trial, and thereupon taxed full costs and entered judgment therefor in his favor. The defendant .then moved, on an order to show cause, for a readjustment of the costs, and that the same be stricken from the judgment except for the sum of six cents. The order to show cause was discharged, and the motion for a readjustment of the costs was denied. Thereupon the defendant appealed to this court.

      Waters & Knox, for the appellant.

      Shankland <& Sh'amMcmd, for the respondent.
   JBooKes, J.:

The decision in Dinehart v. Wells (2 Barb., 432) seems entirely conclusive of the question presented on this appeal. According to that decision the provision of the Code which declares that in an action for assault and battery, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, does not nullify or affect the prior provision of the same section (304), which provides that costs shall be allowed of course to the plaintiff when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. True, the language of the Code is not precisely the same as that of the statutes under consideration in Dinehart v. Wells, but the intent and meaning were the same. The difference in the phraseology is but formal, and admits of no construction dissimilar in the one case from the other. That decision, being a General Term decision, should be adhered to until overruled in the appellate court. It is suggested that there is an important dissimilarity between the case cited and the one in hand, as regards the pleadings. In the case cited the action, like that here before us, was for assault and battery. The answer was the same in both cases, to wit: (1) general denial; (2) son assault demesne; (3) moliter manus imposuii in defense of defendant’s possession. In the case cited there was a reply to the third defense, alleging the locus in quo to be a public highway, and that the plaintiff was lawfully there when the injury complained of was inflicted. To this the defendant rejoined, denying that the locus in quo was a highway. Thus an issue was raised upon the third defense, and the court held that on,such issue the title to land came in question on tbe pleadings. This line of pleading was admissible when the record in that case was made up by the parties, but now, under the Code, no reply to the defendant’s answer was admissible (Code, § 153), and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance. (Sec. 168.) The two cases are therefore precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be deemecl controverted, “ as upon a direct denial or avoidance.” (Sec. 168.) It seems also that the title to real property came in question on the trial. The judge so certified; and the papers before us show that evidence was given bearing on the question of title; and the judge charged the jury on the subject. A point is made that the certificate is by the judge and not by the court, but it does not appear, as it should to make this objection available, that it was raised before the taxing officer; and besides, for aught that appears, the certificate was made by the court. The county judge is the court when in session, and that court is always open for the transaction of any business, for which no notice is required to be given to the opposite party. (Sec. 31.) It should be added here,, perhaps, that the certificate was conclusive upon the taxing officer, that the title to land came in question on the trial. (Mumford v. Withey, 1 Wend., 279; Barney v. Keith, 6 Wend., 555; Burhans v. Tibbits, 7 How., 75, per Wright, J.; Niles v. Lindsley, 1 Duer, 610; Utter v. Gifford, 25 How., 297, per Hogeboom, J.) If improperly granted the certificate may be set aside on motion for that purpose. (Barney v. Keith, supra.) The order appealed from must be affirmed, with ten dollars costs and disbursements.

LearNEd, P. J., and Boardmait, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Per Guriam:

text:
    RUDOLPHUS RECORD, as Overseer of the Poor of the Town of Smyrna, Respondent, v. MANSON K. MESSENGER, Appellant.

      Chapter 820 of 1873.— Prosecution for violation of excise law by thwd, person — discontinuance of action by overseer of the poor — costs.
    Where an action is brought to recover a penalty for a violation of the excise law, under chapter 820 of 1873, authorizing any person to prosecute therefor in the name of the overseer of the poof, in case the proper persons refuse for ten clays to bring such action, the overseer of the poor, in whose name the action is Drought, has no power to consent to its discontinuance without the consent of the persons by whom it was commenced.

      Qucere, whether the persons instituting the action would be liable for the costs.
    Appeal from an order denying a motion to discontinue this action, in pursuance of a stipulation made by the plaintiff.

      D. L. Atlcyns, for the appellant.
    The person prosecuting in the name of the overseer of the poor has no interest in the action. He receives no part of the penalty or costs. (Laws 1857, chap. 628, § 22; as amended, Laws 1873, chap. 820.) A third person prosecuting in the name of the overseer, does so as his agent. The overseer is still plaintiff, and is responsible for costs. He can release or discharge a judgment recovered in his name by such third person without payment. The power to discharge the judgment must necessarily include the power in the same person to discharge the action by which judgment might be obtained. (Smith v. Wright, 13 Barb., 414; Hears v. Boston, etc., 5 Gray [Mass.], 371; Begina v. Allen, 1 Ellis, B. & S., 850; Will&inson v. Lindo, 7 Mee. & W., 87; Gibson v. Winter, 5 B. & Ad., 96; Barlow v. Pease, 5 Hun, 564.)

      L. L. Niles, for the respondent.
   Per Guriam:

This is an appeal from an order denying the defendant’s motion to discontinue the action. The motion was made when the case was moved for trial at the Circuit, on the ground that it had been discontinued by stipulation of the plaintiff.

The action was brought to recover three penalties alleged to have been incurred by the defendant for selling strong and spirituous liquors in violation of the excise law. It was brought originally in the name of Mr. Chapman as overseer of the poor, and the present plaintiff was substituted in the place of the former as his successor in office. Thereafter the plaintiff in person gave the defendant a stipulation discontinuing the action without costs to either party. Notwithstanding this stipulation, the attorney of record for the plaintiff placed the case on the Circuit calendar, and, when it was reached, moved its trial. Thereupon the defendant applied to the court, on the stipulation, for an order of discontinuance*. The motion was denied, and an order was entered to that effect. This appeal is from such order. It was admitted, as appears from the recitals in the order, that the overseer of the poor neglected and refused to prosecute the defendant for the penalties, notwithstanding duty called upon him to do so, according to the provisions of the act of 1873; and that James P. Knowles and Mott C. Dixon, the persons who made the complaint and request, thereupon commenced the action in the name of the overseer, under the provision of the law providing that in case the party whose duty it was to prosecute for the penalties, should, for a period of ten days, neglect or refuse so to do, any other person might prosecute therefor in the name of the overseer; and it was insisted, therefore, that the action was their action and could not be discontinued by the overseer, who was merely nominal plaintiff, without their consent. The court, it seems, maintained this view; and, as we think, correctly. The right to prosecute the action was given, by the express language of the law, to others than'the overseer, in case of his neglect and refusal so to do for ten days after request and due presentation of proof that the party had incurred the penalty imposed by the act. The right to prosecute the action was more than a mere barren right to commence it to be immediately discontinued by another, without consent of the party authorized to prosecute. The right to prosecute was a right to maintain the action — a right to proceed with it to trial and judgment. Otherwise the right to prosecute was impotent and valueless. The manifest object of the provision was to confer the privilege of enforcing the law on other parties, when the officer in whose name the action should be brought neglected and refused to perform his duty. This object would be completely frustrated if the officer, in such case, may stay or discontinue the proceedings at pleasure. If he may do this, there is no right to prosecute against his will, yet this right was plainly intended to be conferred, and in the language of the law was conferred. It is only under this construction that the act and its manifest intent, can be made effective. It seems, therefore, that as regards the right to prosecute the action, it should be deemed the action of Knowles and Dixon. They had acquired the right to prosecute it in the name of the overseer. We are not here called upon to decide, whether they would be liable to the defendant for his costs in case of their failure to maintain the action. Doubtless, costs would, by the record in that case, go against the officer as such, and it may be a question perhaps, whether, inasmuch as the law provides for the prosecution of this action by persons other than the overseers, in the name of the latter, the same rule would not apply as in the case of an action prosecuted by the officer himself. In case of a prosecution by the officer on his own volition he may doubtless control it, and may even discharge the judgment when obtained. Still the right to discharge a judgment in that case without payment and in fraud of the rights of the people may well be doubted. But this question is not before us on this appeal. Here the right of the attorney further to prosecute the action is challenged, on the ground that he is without authority so to do from, the plaintiff who has assumed to dismiss the ease. He answers that the action is not the action of the plaintiff on the record, and that it rests with another, to whom the law has committed its prosecution. This seems a perfect answer, as it fully meets the ease made by the defendant as the foundation of his motion, and this view seems to have support in Barlow et al., overseer, v. Pease (12 N. Y. S. C. R. [5 Hun], 564).

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

Present — LeabNed, P. J., Bocees and BoabdmaN, JJ.

Order affirmed, with ten dollars costs and printing.


text:
    JOHN M. PECK, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Employmant of brakeman — scope of — Excessive damages — verdict ofjmy — w hen not set aside.

    A brakeman, put in charge of railway cars with a view t,o securing the proper and orderly seating of passengers, forcibly ejected the plaintiff, who disobeyed his direction. Held, that in so doing the brakeman must be deemed to have acted within the scope of his employment, and that the company was liable in case he used excessive and unnecesssary force.
    Upon the former trial plaintiff recovered a verdict for $5,000, which was set aside by the General Term, on the ground that the damages awarded were excessive. Upon the second trial a verdict was recovered of $4,000. Meld, that this second verdict, rendered upon substantially the same facts as were presented to the first jury, must be accepted as final and conclusive.

    Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages alleged to have been sustained by the plaintiff, in consequence of his haying been forcibly removed from one of defendant’s cars. Hpon the first trial the plaintiff had a verdict for $5,000. Hpon appeal to the General Term, the verdict was set aside, on the ground that the' damages awarded were excessive, the case being reported in 11 N. Y. S. O. R. (4 Hun), 236. Hpon the second trial the jury rendered a verdict in his favor for $4,000. A motion to set aside this verdict having been denied, this appeal was taken.

      Samuel Hand, Matthew Hale and Frank Loomis, for the appellant.

      Amasa J. Parker, for the respondent.

       See Lunt v. L. & N. W. Railway Co. L. R. (12 B.), 281.

   Bookes, J.:

The case is the same now as when it was before the court on the former appeal, as regards the question of defendant’s liability for tbe act of the brakeman, Cochran. (11 N. Y. S. C. [4 Hun], 236.) The brakeman was stationed at the car to direct passengers who might attempt or desire to enter. The plaintiff disobeyed his direction, whereupon the former forcibly ejected him. There was no evidence that the brakeman had been especially instructed to remove any one from the cars by force, but he was placed in charge to direct passengers with a view to their orderly and proper arrangement therein. Under such a state of facts it was held that the brakeman must be deemed to have been acting within the scope of his employment, and that the company was liable in case he used excessive and unnecessary force in removing the plaintiff from the cars. There has been some loose writing on the question as to the liability of the master for the wrongful act of his servant, but the cases seem to hold quite uniformly that the master is liable for the wrongful act of his servant, if done in his service and within the scope of his employment, and this, although in doing the act the servant depart from the instructions of the master. (Higgins v. Watervliet Turnpike and R. R. Co., 46 N. Y., 23.) In this case, ANDREWS, J., says : “ If he (the master) employs incompetent or untrustworthy agents it is his fault, and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided only, that the agent was acting at the time for the principal, and within the scope of the business intrusted to him.” In Cosgrove v. Ogden (49 N. Y., 255-257) Judge Grover says : “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” It has also been said in some cases, that when the principal puts the agent in place of himself, he is liable for the wrongful acts committed by the agent in the course of the employment, or the carrying out of the business with which he is intrusted. So in the recent case of Rounds v. The Del., Lac. and W. R. R. Co., in the Court of Appeals (2 N. Y. W. Digest, 260), it was held that when authority is conferred on a servant by a master to act for him, it carries with it, by implication, authority to do all things necessary to its execution, and the master is liable for his tortious acts, although be depart from the private instructions of the master, provided he was engaged at the time in doing his master’s business, and was acting within the general scope .of his employment. The case of Bayley v. Man., Sheff. and Lincolnshire R. Co. (L. R., 7 Com. Pl., 415; 4 Eng. Rep. [Moak’s notes], 384), seems much like the one in hand. In this case a railway porter, having been intrusted with a general authority for certain purposes, in connection with the management of the carriages of his employers in the station where he was employed, the company was held liable for his wrongful act in removing a passenger from a carriage which he erroneously thought was the wrong carriage. Now, in the case at bar, the brakeman was put in charge of the cars with a view to secure the proper and orderly seating of passengers. In carrying out this purpose he committed the act complained of. He was acting, therefore, within the scope of his employment. The case was tried upon the theory, and doubtless correctly in that regard, that he might suppress disorder and secure order among the passengers who should enter or desire to enter the cars. As a servant of the company he would have been protected in using all necessary force to secure that end; and it must follow, therefore, within the doctrine of the cases cited, that the company would be liable for his wrongful acts in carrying such purpose into effect.

There was no error in the refusal of the learned judge to nonsuit as requested. Nor was there any error in the admission or rejection of evidence; nor in the charge of the judge or in his refusal to charge as requested. But a serious difficulty arises on the point that the amount of damages awarded by the jury is excessive. It was on this ground that a new trial was granted on the former appeal. The former verdict was $5,000. This sum was deemed quite extravagant and palpably unjust, in view of the case made on the evidence. The verdict on the retrial was for $4,000. The case is quite similar on the proof to that before considered by the court, and the reduction in the sum now awarded by the jury seems much less than it should have been, in view of the remarks then made by the court. (4 Hun, 238, 239.) But even supposing the amount now awarded is deemed by the court large, is it within the province and duty of the court to grant another new trial on this ground? A second jury has considered the case under admonition from the court, and has made some deduction from the sum before awarded. The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious as has been the verdicts of juries. Little aid can be obtained on this subject by referring to cases, as will be seen on turning to the opinion of Mr. Justice Hogeboom, in Murray v. Hud. R. R. R. Co. (47 Barb., 196). The verdict there was for $8,000, and a new trial was granted unless the plaintiff would reduce it to $6,000. This disposition of the case was directly against the decision in Cassin v. Delany (38 N. Y., 178), where it was held that the General Term had no power to order the reduction of the verdict to a sum named, as the alternative of a new trial. However, the decision in Murray's Case was after this, in 1871, alfirmedin the Court of Appeals. (48 N. Y., 655, n.) The afflrmance in Murray’s Case must be deemed to overrule the previous decision in Cassin v. Delany. It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved; but this sum having been awarded by a second jury, the case having been sent back for reconsideration on that point, and nothing appearing except the amount, on which to predicate partiality, corruption or improper influence, I think the court must accept it as final and conclusive.

The order appealed from must be affirmed, and the motion for a new trial on the case and exceptions must be denied, and the plaintiff is entitled to judgment on the verdict, with costs.

LeabNed, P. J., and BoabdMAN, J., concurred.

Order affirmed, with costs.


author: LeaeNed, P. J.:

text:
    HENRY O. BROOKS, Plaintiff, v. CHARLES E. HATHAWAY and E. E. HEATH, Defendants.

      Execution — Exemption lane — Laws of 1859, chap. 184 — duty of debtor, to ciaim exemption within reasonable time.

      Ia the latter part of February, 1874, the defendant, a deputy sheriff, seized a wagon belonging to the plaintiff under an execution issued against him, and advertised the same to be sold on March tenth, but subsequently, at the request of the plaintiff, the sale was postponed. At the time of the levy the' plaintiff owned three or four other wagons, all of which were subsequently, and prior to April fourteenth, disposed of by him. On the latter day the defendant took possession of the wagon and sold it, against the objections of the plaintiff who claimed that it was exempt under chapter 134 of 1859. In an action to recover for its conversion, held, that the plaintiff was bound to make his election within a reasonable time, and to notify the officer that he claimed the property as exempt, and that the question whether or not he had made his election within a reasonable time should, under the circumstances of this case, have been submitted to the jury.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    This action was brought to recover the damages sustained in consequence of the unlawful taking of a wagon belonging to the plaintiff. The defendants justified under an execution issued against plaintiff, in favor of one Sands. The defendant Heath is the deputy sheriff who levied and sold, and Hathaway aided him in so doing, and purchased the wagon. Plaintiff claimed that the wagon was exempt, under the exemption law. (Sess. Laws 1859, chap. 134.)
    The levy was made the last of February, 1874, and plaintiff had then four teams and three or four other wagons. , The sale was advertised for March tenth. The deputy sheriff testified that, before that time, plaintiff had a conversation with him about adjourning the sale. Plaintiff testified that he knew of the levy ten or twelve days after it was made, and that he brought a letter to the deputy sheriff, from Sands, requesting him not to sell. The sale was postponed, and the property remained in plaintiff’s possession. About April fourteenth, the deputy sheriff took actual possession of the property, and then plaintiff forbade him, claiming that the property was exempt. Meantime, the other wagons had been disposed of by plaintiff.
    On the trial the learned justice instructed the jury, as matter of law, that plaintiff was entitled to recover the value of the wagon, and defendants excepted. Defendants also asked the learned justice to submit to the jury the question, whether the length of time which had elapsed before plaintiff notified the officer was not sufficient to estop him from claiming the wagon as exempt. This was refused, and defendants excepted.

      A. H. Sewell, for the appellant.
    It was a question of fact for the jury to determine, which one of the four teams of horses and which one of the four or five wagons constituted the plaintiff’s necessary team, or whether in fact any team was necessary to the support of the plaintiff and his family. (Daius v. Prosser, 32 Barb., 291; Baker v. Brini/nall, 52 id., 193; Lockwood v. Young-love, 27 id., 507; Griffin v. Southerland, 14 id., 457; Smith v. Slade, 57 id., 637; Wileox v. Hawley, 31 N. Y., 656; Shaw v. Davis, 55 Barb., 392; Seaman v. Buce, 23 id., 257; Wilson v. Bilis, 1 Den., 462.) The plaintiff having failed to make known his election within a reasonable time, is presumed to have acquiesced in the'levy, and is estopped from claiming that the property was exempt. (Seaman v. Luce, 23 Barb., 242; Lockwood v. Young-love, 27 id., 508.)

      Oscar H. Givrtis, for the respondents.
   LeaeNed, P. J.:

The plaintiff knew of the levy before March tenth; at least the jury might have so found. There was some evidence, too, that shortly after that day he made arrangements to have the property sold before May thirteenth, to which time the deputy sheriff had postponed the sale. The claim that the property was exempt was first made about April fourteenth, more than a month after knowledge of the levy.

Where the judgment debtor has other property, apparently exempt, or which might be exempt, under this act, he must within a reasonable time after knowledge of the levy, make bis election, and give notice to the officer that he claims as exempt the property levied upon. (Seaman v. Luce, 23 Barb., 240; to the same effect is Smith v. Slade, 57 Barb., 641; and substantially Twinam v. Swart, 4 Lans., 263.)

Nothing in Wilcox v. Hawley (31 N. Y., 655) conflicts with this. There were not, in that case, two or more teams belonging to the debtor, any one of which he -might elect to consider exempt. And when a judgment debtor has several teams and wagons, one of which has been levied upon to his knowledge, it would be unreasonable that he should wait for over a month, disposing, meantime, of his other wagons and teams, and then, for the first time, assert that this was his exempt wagon.

Other questions were raised which we need not pass upon. We think it was erroneous to charge, as matter of law, that the plaintiff was entitled to recover, and to refuse to submit the question whether the length of time which had elapsed was not sufficient to prevent a recovery.

It is not necessary to say whether the delay of a month, unexplained, can be reasonable.

A new trial is granted, costs to abide the event.

Present — LeaeNed, P. J., Bocees and BoaetjMAN, JJ.

New trial granted, costs to abide event.


text:
    THE CHENANGO BRIDGE COMPANY, Plaintiff, v. CLINTON F. PAIGE and FREDERICK LEWIS, Surviving Executors of HAZARD LEWIS, Deceased, Defendants.

      Decision of “highest tiibunal”— acts done under — protection against penalty or

    Tie Binghamton. Bridge Company having, in 1855, erected a bridge over the Che-nango river, at Binghamton, within eighty rods of plaintiff’s bridge, the plaintiff in 1856 commenced an action to enjoin it from collecting toll thereon, on the ground that, by its charter, no bridge could be erected within two miles of the one previously erected by it. The plaintiff was defeated at the Circuit, and the judgment affirmed at the General Term and by the Court of Appeals, but subsequently reversed by the Supreme Court of the United States.

      In 1865 the Binghamton Bridge Company’s bridge being carried away by a freshet, struck and carried away plaintiff’s bridge. Plaintiff brought this action to recover the tolls unlawfully diverted from it by the other bridge, and damages arising from its bridge being carried away. Defendant maintained that our courts having sustained the validity of the statute incorporating the Bing-hamton Bridge Company, defendants’ testator was protected by 2 Revised Statutes, 602, although the decision of our courts had since been overruled.

      Eelcl, that this was not so for the reason: first, that the bridge was not built after any decision of our courts had given a construction to the act; and, second, that the recovery of damages by reason of the loss of toil was not a penalty or forfeiture.

      EM, further, that the principle laid down in Earrü v. Jex (55 N. Y., 421), that a person had a right to rely upon the decision of the highest tribunal of the land upon any question, and was not bound to foresee that it would be reversed, was not applicable, as the decision of the Court of Appeals was not the decision of the highest tribunal of the land, upon the matter involved.
    MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term.
    This action was brought to recover for damages occasioned by the erection of a bridge across the Chenango river at Binghamton, by the Binghamton Bridge Company. The plaintiff was incorporated by chapter 89, Laws of 1805, and authorized to build a bridge across the Chenango river at Binghamton. The act declared “ that it shall not be lawful for any person or persons to erect any bridge * * * within two miles either above or below ” plaintiff ’s bridge. The plaintiff built and maintained the bridge until it was swept away in 1865. In 1855 an act was passed incorporating the Binghamton Bridge Company, and authorizing it to construct a bridge across the Chenango river at Binghamton, at a point not less than eighty rods from the plaintiff’s bridge.
    The defendants’ testator, Hazard Lewis, became a stockholder in the Binghamton Bridge Company, was always a director in it, was at times its president, and as a contractor built their bridge, and under their direction did some repairs on it as late as 1862, and died the 2d day of July, 1863; and the defendants, as executors of his will, qualified on the 15th of July, 1863.
    Plaintiff notified Hazard Lewis that it “ would hold him, the said Hazard Lewis, personally responsible for the erection of such a bridge and for all the consequences thereof.” In May, 1856, plaintiff brought an action against the Binghamton Bridge Com-pa ny to enjoin it from constructing and using its bridge, and from collecting tolls, and for damages.
    The action was tried at Special Term before Mr. Justice Geay, who dismissed the complaint in January, 1858, and thereon judgment was entered March, 1858, which was affirmed on appeal by the General Term and Court of Appeals. A writ of error was then brought, taking the case to the Supreme Court of the United States, in which court the judgments were reversed in December, 1865, and the cause remanded to the Supreme Court, with directions to enter judgment for plaintiff, etc.
    A new trial was had before Mr. Justice BoaedMaf, who, in November, 1866, rendered a decision granting the prayer in plaintiff’s complaint, with damages. Defendant appealed from this decision to the General Term in January, 1861, where Judge BoaedmaN’s decision was affirmed, and final judgment in that action was entered in favor of plaintiff against the Binghamton Bridge Company, November 19, 1861.
    After the said Lewis’ death, and in the same year, the. plaintiffs took down their bridge and rebuilt it in the year 1864.
    The bridge of the Binghamton Bridge Company was swept away by the flood of 1865, and was carried by the stream against the plaintiff’s bridge, and that was carried along with it.
    This action, commenced on the 23d day of March, 1869, was brought to recover the tolls diverted from the plaintiff’s bridge, and for the loss of the bridge itself.
    One trial was had and plaintiff recovered against these defends ants, but a new trial was granted by the General Term in this department (see 63 Barb., Ill), on the ground that improper evidence was admitted. A retrial was had, when plaintiff again succeeded.

      Chapman <& Marrim,, for the plaintiff.

      Giles W. Hotehldss, for the defendants.
   LeaeNed, P. J.:

This cause'has already been once before this court, and the decision is reported 63 Barbour, 111. A majority of the court seem to have then held that the plaintiff might maintain both causes of action, set forth in the complaint. We are bound by that decision, which was f olid wed by the learned justice who last tried the cause. If we were not, I should adopt the views of Mr. Justice ParKer in his dissenting opinion. The right of riparian owners to construct such a bridge is not disputed. It was the permitting of the same to be used by the public, free or for toll, which was held to violate the plaintiff’s rights. (The Binghamton Bridge, 3 Wall., 51.) But the construction, which was lawful, not the use, which was unlawful, contributed to the destruction of plaintiff’s bridge.

I understand that the majority of the court also held that Lewis (and therefore his estate), was liable for what the corporation did, or for what he did, as its agent, in constructing the bridge, and was also liable for the loss of tolls which the plaintiff suffered through the illegal use of the bridge by the Corporation which owned it. That decision concludes us, although I cannot assent to the doctrine.

One point is made by the defendants which was not presented to the court on the former argument. That is, “ that the construction of their statutes by our own courts having sustained the position and conduct of the Binghamton Bridge Company, defendants’ testator is protected, although the decision of our courts has since been reversed.” To support this' the defendants cite 2 Revised Statutes (§ 1 [66], part 3, title 3, art. 1 [m. p.], 602). But the building of the bridge was not after any decision of the Supreme Court giving construction to the act. And the recovery for damage by reason of the loss of the tolls cannot be called a penalty or forfeiture.

The defendants further urge that the principle decided in Harris v. Jex (55 N. Y., 421), applies. In that case it was held that where the highest tribunal in the land has decided a question, a person had a right to repose on such decision; that he was not bound to foresee that the same tribunal would reverse its decision the next year. But, in the present case, the highest judicial tribunal in the land has never decided that the Binghamton Bridge Company had a right to maintain a public bridge, or to take toll. That question was in dispute, at all times, from the commencement of the former suit in May, 1856, to the decision of the United States Supreme Court, in. December, 1865. On the point involved the Court of Appeals was not the highest tribunal.

Again, in the present case the plain tiff seeks to -recover for the tolls which it ought to have received, and which were in fact received by the Binghamton Bridge Company. The latter ought not to retain the benefit of its own unlawful act. But in Harris v. Jex the defendant endeavored to defeat the foreclosure of a mortgage by proof of a mere tender of the amount in national currency, made at a time when, by the decision of the United States Supreme Court, only gold was a legal tender, under the circumstances of that case. So that if a retroactive effect had been given to the subsequent reversal by that court of its own decision, the plaintiff would have lost the lien of his mortgage without receiving payment of his debt, under the harsh rule of Kortright v. Cady (21 N. Y., 343).

Following, as we are bound to do, the former decision of this court, we are compelled to deny the motion for a new trial and to order judgment on the verdict, with costs.

Present — Leahnbd, P. J., and Bookes, J. BoaRDMAN, J., not acting.

Motion for new trial denied and judgment ordered for plaintiff on verdict, with costs.


author: BoabdmaN, J.:

text:
    SILAS R. HILL, Plaintiff, v. THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, Defendant.

      Parol contract — 'when not merged in subsequent written contraet — Bill of lading.

    Plaintiff delivered a quantity of wool to tire defendant in pursuance of, and relying upon a parol contract that it should he shipped within two weeks; afterwards and upon the same day receipts were given to him by which defendant was exempted from all liability arising from delay; plaintiff did not examine the' receipts, except to see that the weights were correct, until the ■ next day, nor did he discover the condition until that time. The wool was not shipped for two months, by which time the price had declined nearly thirty cents per pound. In an action to recover the damages occasioned by the delay,
      held, that the parol agreement was not merg'ed in the receipts, and that the plaintiff was entitled to recover.

      BoskoieJcv. Balt, and Ohio B. B. Go. (45 N. Y., 713) followed.
    MotioN for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict by the jury in favor of the plaintiff.

      R. A. Stanton, for the plaintiff.

      Geo. N. Kennedy, for the defendant.
    The written contract and receipt, with the conditions and rules forming a part thereof, is the actual agreement between the parties, and being in the nature of a contract, limiting the common-law liability of common carriers, cannot be altered, changed or modified in its legal effect, by parol evidence of any talk between the plaintiff and the freight agent of defendants, preceding its execution. (Long v. K. Y. O. R. R. Oo., 50 N. Y., 76; Belger v. Di/nsmore, 51 id., 166; Oollender v. Di/nsmore, 55 id., 204; Steers v. Li/oerpool, New York and Philadelphia Steamship Go., 57 id., 1; Magnin v. Dinsmore, 56 id., 168; Steiger v. Erie Railway Go., 12 S. C. N. Y. [5 Hun], 345.)
   BoabdmaN, J.:

The plaintiff delivered a quantity of wool at defendant’s depot, at Whitney’s Point, to be carried to New York city. Plaintiff gave evidence tending to show that before the delivery of the wool he made a parol agreement, with the person in chai’ge, that the wool should be shipped by defendant within two weeks, and that upon the faith of such agreement, the delivery was made. Afterwards, and on the same day, as plaintiff was about to start for his home, some twenty-six miles distant, he received from defendant’s agent at the depot, some receipts for the wool, but examined them no further than to see that the weights were correct, and then put them in his pocket, and did not notice the conditions thereon until next day. By such conditions the defendant was exempted from liability arising from any delay. The wool was not shipped until nearly two months after. In the mean time the value of the wool in market had fallen off nearly thirty cents per pound. The plaintiff brings this action to recover this difference in value as damages, relying upon the breach of the parol contract to ship within two weeks. The defendant relies upon the terms and conditions of its receipt given to plaintiff', whereby it claims to be exempt from liability. The case has been three times tried, the plaintiff succeeding on each occasion.

The verdict of the jury establishes the making of the parol contract as alleged by plaintiff, the delivery of the wool thereunder, and the subsequent acceptance by plaintiff of the receipts without notice or knowledge, on that day, of their contents; it also establishes, so far as it can be a question of fact, that it was not plaintiff’s intention to make such a contract as is contained in the printed matter contained on the receipts, nor to merge or extinguish his prior parol contract by the acceptance of such receipts.

All that remains for us to decide is, whether, as a matter of law, the receipt expresses the contract between the parties; if it does, the plaintiff is remediless. Otherwise, the verdict of the jury will be conclusive, and must stand.

The case of Bostwick v. Balt. and Ohio R. R. Co. (45 N. Y., 712) was relied upon at the Circuit. In that case, Rapallo, J., says: The verbal agreement had been acted upon, and under it plaintiff had parted with all control over his goods. The rule that the prior negotiations are merged in a subsequent written contract, does not apply to such a case as this. If the plaintiff had expressly assented to the terms of the bill of lading subsequently delivered to him, such assent would operate as a change of the contract originally made, and under which he had parted with his property, but after the verbal agreement had been consummated, and rights had accrued under it, the mere receipt of the bill of lading, inadvertently omitting to examine the printed conditions, was not sufficient to conclude the plaintiff from showing what the actual agreement was under which the goods had been shipped.” This language applies directly to the case under consideration. The goods in the case cited had been in fact shipped when the receipts were delivered. It was therefore impracticable for the shipper to resume possession of his property. In the present case, it was in the power of the plaintiff to surrender his bills of lading, and resume possession of his wool, but it is not apparent how that cir- • eumstance affects the principle enunciated. In either case the contract actually made between the parties, by which the defendant acquires possession and control of the property, is made to prevail rather than a contract which was not within the intention of plaintiff, and probably not within the intention of the agent of the defendant. In either case it was the substitution by carelessness and mistake, of the usual bill of lading, instead of adapting it-to the contract actually made. So this verdict might stand if the bill of lading had been delivered simultaneously with the delivery of the property, if the jury was satisfied of the mistake. (Long v. N. Y. C. R. R. Co., 50 N. Y., 76.) There is no evidence of any intention to modify the parol contract' when the receipts were given. If that effect is produced, it will be in obedience to a presumption arising from the contents of the receipts, proved by plaintiff to be false, and without any positive evidence of its truth.

The same principle is again affirmed in Coffin v. N. Y. C. R. R. Co. (64 Barb., 379; affirmed in the Court of Appeals without an opinion, 56 N. Y., 632; Goodrich v. Thompson, 44 N. Y., 324.)

Unless there be some rule of law compelling us to recognize a merger of a parol agreement in a subsequent written contract, in the absence of and in hostility to such an intention, the parol agreement in this case should stand, because under the verdict of the jury it is the agreement under which the parties acted, in the delivery by one and the acceptance by the other of the property. By what right, then, can the defendant, without express evidence of assent on the part of the plaintiff, change such contract so as to exempt it from a duty and liability specially contracted for ? Courts do not favor the doctrine of merger where it would violate the intention of the parties, and work inj ustice. (Witbeck v. Waine, 16 N. Y., 532.) If these conclusions are correct, no error was committed in declining to charge the jury that the receipts furnished the evidence of the contract, and that the parol contract was merged in the receipts and conditions thereto annexed. No exception appears to have been taken to the charge as made in reference to these contracts, nor was there any request to submit to the jury to find and determine the intention of the parties, touching the effect to be given to the receipts.

I have assumed, for the purpose of this opinion, that if the terms of the receipts controlled, the defendant would not be liable. I think that is true, because there is no evidence of gross negligence on the part of the defendant in not sooner forwarding the wool; the effect of storms upon the road necessarily delayed the shipment of property. But in any event that would be a question of fact for the jury, and if it is of any importance in this case it has been found against the defendant.

As to the duty of the shipper in ordinary cases to examine the contents of a receipt, see Kinldand v. Dinsmore (62 N. Y., 171). — [Rep.

I do not see any error in the other points urged by the defendant why a new trial should be had.

For the reasons given, the motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict with costs.

Present — Learned, P. J., and BoaedMAN, J. BooKes, J., not acting.

New trial denied and judgment ordered on the verdict, with costs.


author: BoardMAn, J.:

text:
    JONAS PRENTICE, Respondent, v. SOPHIA WHITNEY and others, Executors, etc., of GEORGE WHITNEY, Deceased, Appellant.

      Executors — Notice to creditors, to pi'esent claims — notice, when sufficient — 2 R. &, 88, §§ 34, 38.
    The defendants, executors, in pursuance of 2 Revised Statutes, 88, section 34, published a notice to creditors to present their claims, the notice being in the usual form except that the word “ requested ” was used instead of “required.” Held, that there was no substantial difference between the words “request” and ‘ ‘ require ” as the latter vyas used in the statute, and that the notice was sufficient.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Chapman dh Martin, for the plaintiff.

      Richards <& Sessions, for the defendants.
   BoardMAn, J.:

This is an action against the defendants as executors, etc., of George Whitney, deceased, to recover a claim existing against the testator in his lifetime. Pursuant to an order of the surrogate the defendants published a notice to creditors to present claims, which was duly published for six months. Within that time this claim was presented to defendants, and ultimately rejected by them. No offer to refer was made by either party. More than six months after the rejection of plaintiff’s claim by the defendants this action was brought. The answer sets up the short statute of limitation. If the form of the notice to creditors be sufficient, the plaintiff’s action is barred thereby. The notice is in the usual form, except that the word “requested” is used where, ordinarily, the word “required” is inserted in the notice, so that the creditors of the estate are requested to exhibit their claims, with the Touchers, etc. The plaintiff claims, and the referee held, that such notice “ was not such a compliance with the statute which authorizes executors and administrators to insert a notice ‘ requiring ’ all persons having claims against the deceased to present them, as to bar the plaintiff from maintaining his action, although he did not commence it within six months after the rejection of his claim by the defendants.” This decision is alleged to be erroneous, and if so the judgment for the plaintiff should be reversed.

It is conceded that this short statute of limitation is penal in its character (2 R,. S., 88, §§ 34, 38), and should be strictly construed. A strict construction, however, should not lead to a destruction of the object of the statute. The purpose was that the persons having claims against the estate might present them, so as to facilitate the settlement of the affairs of the deceased. To facilitate such object the surrogate may, at or after a certain time, order a notice given to the creditors by publication, once a week for six months, in a paper' to be named, to present their claims. That notice need not use the precise language of the statute if it convey the same meaning. The essentials of the law should be complied with. The form is nothing, the substance every thing.

It appears to me that there is no reasonable difference in the connection between the words request ” and require.” Both words have the same origin. Usage has given to them somewhat different meanings, which, however, are more distinctions in intensity than in effect or substance. The latter is nearer a command than the former. Yet neither, under this statute, is a command or any thing more than a notice. It is optional with the creditor to present bis claim or not, whatever the words used in the notice. The consequences of his neglect are fixed by the statute. Notice is given, in either form, -to present claims. That, I think, is sufficient. In Hoyt v. Bonnett (58 Barb., 529), the notice did not contain the word required,” yet its sufficiency was not questioned either in the Supreme Court or in the Court of Appeals. (50 N. Y., 538.)

The neglect of either party to offer to refer does not affect the subject under consideration. (National Bank of Fishkill v. Speight, 41 N. Y., 668.)

The conclusion reached in the discussion of the subject of the sufficiency of the notice, renders it unnecessary to consider the other questions raised by the appellants.

For the reason that the notice was sufficient, and the plaintiff’s action is barred by neglect to prosecute within six months after the rejection of the plaintiff’s claim by the defendants, the judgment must be reversed and a new trial granted, with costs to abide the event.

Present — LearNed, P. J., BoardMAN and Bocees, JJ.

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


author: BoaedmaN, J.

text:
    CAROLINE SAUSER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK Defendant in Error.

      Indictment — for marrying a ma/rried person — sufficiency of {¿negations as to prior marriage — 2 B. 8. (Edm. ed.), 710, § 11.
    The plaintiff in error, an unmarried woman, was convicted under 2 Revised Statutes (Bdm. ed.), 710, section 11, of unlawfully marrying one Simons, lie being then a married man. Tlie indictment alleged the marriage, and further, “ she, * * * at the time of marrying * * * the said Conrad L. Simons, well knowing that the said Conrad L. Simons was then and there the lawful husband of Anna M. Simons, and had previously been lawfully married to the said Anna M. Simons.” It contained no other allegation as to the marriage of Conrad L. and Anna M. Simons. Held, that the indictment was fatally defective, in that it did not sufficiently allege the marriage of the said Conrad L. and Anna M. Simons.

      Writ of error to review the conviction and sentence of plaintiff in error, by the Albany County Sessions.
    The plaintiff in error was indicted and convicted for a violation of 2 Revised Statutes (Edm. ed.), 710, section 11, in marrying one Conrad L. Simons, who was at the time a married man. The only allegation in the indictment as to the former marriage of Simons, was the following, viz.:
    She, the said Caroline Sauser, alias Carline Sauser, then and there, at the time of marrying and taking as her husband the said Conrad L. Simons, well knowing that the said Conrad L. Simons was then and there the lawful husband of one Anna M. Simons, and had previously been lawfully married to the said Anna M. Simons; she, the said Caroline Sauser, alias Carline Sauser, then and there, at the time of marrying and taking as her husband the said Conrad L. Simons as aforesaid, well knowing that the said Anna M. Simons, the lawful wife of the said Conrad L. Simons, was alive and in full life.
    The plaintiff in error moved in arrest of judgment, on the ground that the indictment was fatally defective, in that it failed to allege the former marriage of Simons.

      Reilly <& Hamilton, for plaintiff in error.
    The indictment is defective in not charging positively that Simons was a married man, and the allegation that plaintiff in error knew him to be such, does not meet that requirement. {Reg. v. Pelham, 4' N. Y. Leg. Obs., 399 ; People v. Gates, 13 Wend., 317; State v. Raider, 2 McCord, 379; State v. Hatheoele, 7 Iredell, 52; Moore v. Commonwealth, 6 Mete., 243.)

      John M. Bailey, district attorney, for the people.
   BoaedmaN, J.

This case comes before us upon the record of judgment, no bill of exceptions having been made. The plaintiff in error was convicted under 2 Revised Statutes (Edm. ed.), 710, section 11, for an unlawful marriage with one Conrad L. Simons, then being married, and having a wife living, the plaintiff in error being an unmarried person, and knowing tbat Simons was married and had a wife living at the time.

There are three counts in the indictment, each of which charged the marriage, and added: she, the plaintiff in error, at the time of her marriage with Simons, well knowi/ng that said Simons was the lawful husband of one Anna M. Simons, and had been previously lawfully married to her; she, said Caroline, at the time of said marriage well knowing that the said Anna M. Simons was alive and in full life. In no other way was it charged in the indictment that Conrad L. Simons and Anna M. Simons were at the time of such marriage husband and wife, and then living. After a verdict of guilty, and before sentence, counsel for plaintiff in error “ moved in arrest of judgment, and upon the indictment.” Counsel were heard in support of, and in opposition thereto, and the motion was denied. After sentence, this writ of error was allowed.

The plaintiff in error now insists that the indictment was defective, in not charging that Simons was a married man. To constitute the crime an unmarried person must knowingly marry the husband or wife of another, etc. It must be charged that Conrad and Anna were, at the time, husband and wife; has that been done ? I think not. The marriage between plaintiff in error and Conrad is sufficiently alleged, and then is added what the plaintiff in error well knew concerning the relations between Conrad and Anna, but it is not charged as a fact that Conrad and Anna were husband and wife; it may be inferred from the knowledge asserted to have been possessed by plaintiff in error that they were married, but that, I think is not sufficient; whatever is necessary to be proved must be stated in the indictment positively and with certainty. (People v. Allen, 5 Den., 76.) What the plaintiff in error knew, was material, but the relations between Conrad and Anna were equally material; the former is fully set forth, the latter were not. In Houser v. The People (46 Barb., 33), it was held that an indictment under section 10 of the same article of Revised Statutes, was defective in not alleging the apprehension of the defendant in the county in which he was indicted, for the reason that it was an essential fact to authorize a conviction. To the same effect are Haskins v. The People (16 N Y., 344); Regina v. Pelham (4 N. Y. Leg. Obs., 399); Enright v. People (21 How., 383); People v. Gates (13 Wend., 317). The precision and certainty required in criminal pleading, will not admit any thing to be taken by intendment. (Com. v. Moore, 6 Metc., 243; 1 Wharton’s Criminal Law, §§ 285, 287, 367.) The indictment must show what offense has been committed by positive averment; it is not sufficient that it appears by inference. (Id., 367; Com. v. Griffin, 21 Pick., 525 ; King v. Horne, Cowper, 683, 684.)

For the reasons stated, I think the indictment was fatally defective. The defect is one of substance, and not of form (Houser v. People, ante); hence it is not cured by 2 Revised Statutes, 728, section 52.

The grounds upon which the motion in arrest was made are not stated in the record, but the motion appears to have been argued by counsel on either side; I think it may be presumed that the same ground was taken in the court below. As the objection is one which could not be obviated, no harm can arise from a neglect to state it in the record.

I think the conviction and judgment should be set aside, and the prisoner should be discharged.

Present — Leaened, P. J., BoaedMAN and Booses, JJ.

Judgment reversed and prisoner discharged.


author: BoardMAN, J.: Learned, P. J.:

text:
    SYDNEY COVERT and JAMES COVERT, Respondents, v. MAHALA HUGHES Impleaded with another, Appellant.

      Ma/t'ried women aot — chapter 90 of 1860 — when sepa/rate estate of married woman ohargeaMe under— debt cowtn'aeted by tier as Ms agent.

    TJnder section 1 of chapter 90 of 1860, providing that the property of any married woman shall not he liable for the debts of her husband, “ except such debts as may have been contracted for the support of herself or her children, by her as his agent, ” her estate is liable for the price of goods purchased by her as his agent, which were necessary for and used in the support of herself and her children.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. ■

      H. Bowrdmai% Smith, for appellant, Mahala Iiugbes.

      E. P. Sari, for the respondents.
   BoardMAN, J.:

This appeal is taken by Mahala Hughes alone, she being the wife of John Hughes, from the judgment which charges her real estate with the payment of $496.27, originally charged by the plaintiffs to her husband, besides costs of this action.

The defendant Mahala Hughes is justly indebted to the plaintiffs for feed, etc., purchased by defendant of plaintiffs, and fed to her cattle, horses and other stock owned by her and constituting a part of her separate estate. She is also indebted to plaintiffs for insurance premium paid by them upon defendant’s house, also a part of her separate estate. Both these amounts were contracted and applied for the benefit of Mahala’s separate estate. The decision at Special Term makes the amount of these items at the date of the decision, including interest, $134.8.7. Such decision is sustained by the evidence. Indeed, the facts are uncontradicted. This sum is part of nearly $800 originally charged by plaintiffs to the defendant John Hughes, and being for abalance of such account for which the defendants gave their joint and several promissory note, in the usual form, to the plaintiffs. Afterwards the plaintiffs sued the defendant John Hughes, upon such note, and recovered judgment for the sum due. thereon, with a small balance of account which had accrued after the date of such note. Such judgment does not merge any claim which plaintiffs may have against Mahala by reason of said note, or of the indebtedness thereby secured. There might have been an extinguishment of plaintiffs’ right of action upon the note after the recovery against John, if it had been a joint note only.

It is also found, by the decision at Special Term, that the sum of $300, at least, of said account of $700 or $800, was for goods purchased by the defendant Mahala as the agent for her husband, and that such goods were used for the support of herself and her children. The learned judge then holds her real estate charged with that portion of the debt so contracted for the support of herself and her children. Such conclusion is founded upon the language of the act of 1860 (chap. 90, § 1), whereby the property of a married woman shall not be liable for her husband's debts, “ except such debts as may have been contracted for the support of herself or her children, by her as his agent.”

There is abundant evidence to justify the conclusion that the wife purchased of plaintiffs at least $300 in value of the goods, as the agent of her husband, and that such goods were necessary for, and used in the support of herself and her children. This brings the recovery in this respect within the strict letter of the law. But it is claimed that this- provision of the statute is a palpable error, and that the legislature never intended to create such a provision. This view is sustained by the New York Superior Court. (De Mott v. McMullen, 8 Abb. Pr. [N. S.], 335.) In the opinion of Ebeed-MAN, J., the learned judge presents, with much force of reasoning, the inconsistency of such a provision in the law relating to the separate estate of married women, whereby the wife, in certain events, may be compelled to assume the duty of the husband, and support herself and family out of her separate • estate. He concluded that the sentence has been changed in its meaning by the unintentional transposition of the pronouns “ him1” and “ her,” and should read, “ by him as her agent,” instead of “ by her as his agent.”

But in the end the j udge declined to adopt a construction which demands a reversal of the very words used by the legislature, doubting the power, not less than the propriety of such an act. The case is then disposed of upon other questions ’ presented. Whatever is said in that case upon the construction of the statute was obiter, was not then accepted as the law of the case, and hence is not binding upon us.

Entertaining the same sense of the power and propriety of such a construction as is now contended for by the defendant Mahala, we shall abide by the plain language of the law, leaving the legislature to correct, the error, if one exists. Nor do the cases cited by defendants’ counsel conflict with this view. In Smith v. Allen (1 Lans., 101), the question was not presented, discussed, or decided. In Baken v. Harder (6 N. Y. S. C. [T. & c.], 440), and Weir v. Groat (11 S. C. N. Y. [4 Hun], 193), the wife did not buy as the agent of her husband. In each case she bought on her own credit, and undertook and agreed to pay for the goods so purchased.

The Special Term gave judgment for the plaintiffs for $496.27, being for such portions of the property as went to the benefit of the defendant Mahala’s separate estate, and such as she bought for the support of herself and children, together with interest thereon. We have examined the principles upon which such recovery was had, and find it can be sustained. The findings embrace many other facts which have been the subject of criticism by defendants’ counsel, but-we do not see that such findings were material to the case as it was decided. It is not, therefore, deemed necessary to consider them upon this appeal. If the view we have taken be correct, the property of Mahala Hughes, defendant, has been properly charged with the payment of nearly $500 out of a total indebtedness, including interest, of nearly $900.

For the reasons suggested, the judgment should be affirmed, with costs.

Learned, P. J.:

I concur in the result of this opinion, but I am not confident that there is any error in the language *of the act of 1860. The act declares that “ her property shall not be liable for his (her husband’s) debts, except such debts,” etc. The debts excepted, therefore, by this clause, are a certain class of his debts. It would be idle to say that her property shall not be liable for his debts, except for certain of her own debts.

A debt contracted by a married woman, as her husband’s agent, is his debt. One contracted by him, as her agent, is her debt.

The statute exempts her property frqm liability, for his debts, except such as were contracted for the support of herself or her children (not his), and as were not only contracted for such support, but actually through her agency. I suppose that the legislature thought it would be unjust, when a married woman should actually purchase food and clothing for herself and her children, that the creditor should not be allowed to collect the debt out of her property, because the purchases had been made (as in law it probably would be) as the agent of the husband. I think so myself.

Present — Learned, P. J., Boardhan and Bookes, JJ.

Judgment affirmed, with costs.


author: Boaedhan, J.:

text:
    JOHN M. MABIE, Appellant, v. DANIEL JOHNSON, Respondent.

      Promissory note — duty of purchaser — notice, sufficient to require inquiry. ■
    In an action by the plaintiff, a bona fide purchaser, before maturity, of the following note:
    Guilford, Nov. 29, 1870.
    For one Hinckley knitting machine warranted, I promise to pay J. H. Wells or bearer thirty dollars, one year from date with use.
    DANIEL JOHNSON.
    the defendant offered to prove a parol warranty of the machine and breach thereof, and claimed to recoup damages therefor. Held, that the evidence was inadmissible.
    Appeal from a judgment of a county judge, reversing a judgment of a justice of the peace in favor .of the plaintiff.

      Calvin L. Tefft, for the appellant.

      Isaac 8. Newton, for the respondent.
   Boaedhan, J.:

This action was brought upon a negotiable promissory note as follows:

“Guilfoed, Nov. 29, 1870.
“ Eor one Hinckley knitting machine warranted I promise to pay J. H. Wells or bearer thirty dollars one year from date with use.
“DANIEL JOHNSON.”

This note was transferred for value to the plaintiff, before it became due, without any knowledge of the transaction out of which the note arose except what is contained therein, nor did the plaintiff have any notice or reason to suspect that the defendant had any defense to said note.

Upon the trial before the justice, the defendant offered to prove a parol warranty of the machine in certain respects with a view of showing a breach of said warranty, and recouping the damages. This evidence was rejected. The County Court held that such decision was erroneous upon the ground that the word “ warranted ” in the note was sufficient notice of the defendant’s equities to put the plaintiff upon inquiry as to the terms of. the warranty, and that he took the note subject to all damages sustained by the defendant for a breach of such warranty; that, the plaintiff stood in no better situation in this respect than the payee would have done, had he brought suit on the note.

I think the learned county judge is in error in the view he took of the case, and that within the authorities the plaintiff was a bona fide holder of the note in suit, so as to deprive the defendant of his defense. The progress of the law on this subject is given in 1 Parsons on Bills, 258, et seq. The result, of the English decisions is there laid down to be, that the holder of negotiable paper does not lose his rights by proof that he took the paper negligently.” That notice of facts which would defeat his recovery must''not be ambiguous. The same doctrine is maintained in the American courts. (Welch v. Sage, 47 N. Y., 143 ; Magee v. Badger, 34 id., 247; Belmont Bank v. Hoge, 35 id., 65 ; Lord v. Wilkinson, 56 Barb., 593, and the cases cited.) In Magee v. Badger (supra), Porter, J., says: “ ITe, the purchaser, is not bound, at his peril to be upon the alert for circumstances which might probably excite the suspicions of wary vigilance. He does not owe the party wh.o puts negotiable paper afloat the duty of active inquiry to avert the imputation of bad faith.” In Lord v. Wilkinson (supra), and Raphael v. Bank of England (17 C. B., 161; S. C., 33 Eng. L. and Eq., 276), actual notice of the theft of the securities was given, yet it was held that the forgetting, or omitting to look for the notice, was not evidence of mala fides, more than negligence must be proved ; fraud, mala fides, must be shown.

These cases seem to me to sustain the position of the justice upon the trial. The words, “ for one Hinckley knitting machine, warranted,” express the consideration of the note. Giving to the words the broadest meaning possible, they do not imply that there has been a breach of the warranty, by which the defendant has sustained damages. They cannot be construed as notice to the purchaser, of a defense to the note in the hands of the payee. If they do, it must be because the law will presume a breach wherever there is a warranty. That would be preposterous. There was nothing, therefore, which showed, or tended to show, to the purchaser, or even to excite his suspicions, that any defense to the note in suit existed, when he purchased it. He is therefore entitled to protection against defendant’s counter-claim.

It follows that the judgment of the County Court should be reversed, and that of the justice be affirmed, with costs.

Present — Leakned, P. J., BoabdMAn and Bookes, JJ.

Judgment of County Court reversed, and that of justice affirmed, with costs.


author: LearNED, P. J.: Bocees, J.:

text:
    ELAM LOOMIS, Appellant, v. LE ROY MOWRY, JOHN T. MASTERS and WARREN BRIGGS, Respondents.

      Complaint — cause of action — Presumption — that the face of a note is its value.

    Where a complaint alleged that defendants received from the plaintiff his promissory note for $584, indorsed by one Sanborn, upon the agreement that they would return the same before mitturity; the maturity of the note; a failure to return the same and a sale thereof by defendants before maturity, iield, that it stated facts sufficient to constitute a cause of action.
    The presumption is, that the value of a promissory note is the face thereof.
    Appeal from an order dismissing the complain!;, herein, on the ground that it did not state facts sufficient to constitute a cause of action. The complaint alleged “that in September, 1810, said defendants received of plaintiff his promissory note in writing, dated August 1st, 1810, whereby he promised to pay to the order of J. K. Sanborn, four months after date, $534, at the First National Bank of Waterbury, and which said note was indorsed by said J. K. Sanborn.
    That said defendants received said note upon the agreement, that same should be returned to plain tiff before the maturity of said note.
    That said note matured and became payable on the 4th day of December, 1870, and before the commencement of this action. That said defendants have not returned said note to plaintiff, but before maturity thereof sold and disposed of said note at the Washington County Bank.
    That said note was of the value of $534.”

      Hughes é> Horthup, for the appellant.

      U. G. Paris, for the respondents.
   LearNED, P. J.:

We think that the nonsuit on the plaintiff’s opening was erroneous.

Under the complaint it might have been shown that the plaintiff had delivered his negotiable note, with Sanborn’s indorsement, to the defendants on their agreement to return it to him before maturity ; that they had neglected so to return it, and had placed it out of their power so to do by disposing of it before maturity to a tona fide holder. The note is alleged to he of the value of its face. The defendants insist that such allegation may only-mean that Sanborn’s indorsement gave it that value. But, even if this were so, it might be that the plaintiff was bound to protect Sanborn. And, at any rate, the general principle is settled, that the value of a promissory note is prima faoie its face. (Potter v. Merchants’ Bank, 28 N. Y., 641.)

According to the complaint, which must have been taken as admitted, the defendants have made the plaintiff liable to an action for the amount of that note. There must be a right of recovery for that wrongful act, even though it should be possible for the defendants, on the trial, to reduce the damages from the prima faoie amount. If the plaintiff could not sue the defendant until he had been himself sued on the note, his right of action might be outlawed.

Bocees, J.:

The complaint was dismissed on the ground that it did not state a cause of action.

Considered as an action on contract, the complaint states a valid agreement between the parties, performance hv the plaintiff, and a breach on the part of the defendants. These averments give a cause of action ; at least for nominal damages. And considered as an action in tort for the misappropriation of a note, the complaint avers the misappropriation, and with the other facts stated, shows a right of recovery. It is urged that it is not made to appear that the plaintiff suffered damage. The claim is for the non-return or misappropriation of a promissory note.

The presumption is, that the note is of the value of the sum promised thereby to be paid. (28 N. Y., 641, and cases there cited.) We are of the opinion that sufficient was alleged in the complaint to put the case on its merits, without here determining whether it must be held to be an action of assumpsit or tort; although we think the action might well be sustained, on the facts alleged, as an action of assumpsit.

There must be a new trial, with costs to abide the event.

Present — LbaeNed, P. J., Bocees and BoakdmaN, JJ.

New trial granted, costs to abide event.


author: Per Curiam:

text:
    JOSEPH MASTEN, Respondent, v. TOBIAS F. BLACKWELL, JOHN A. GROSS and HENRY J. BUDDINGTON.

      Joint debtors — death of one, during ‘pendency of action — revival of against his representatives.

    In an action against A. B. and 0., copartners, 0. died; thereafter judgment by default was entered against A. and B. Afterwards, on motion, the administrator of 0. was substituted in place of 0. as sole party defendant. Reid, error; that in such case the action against the administrator should be a new one, arising because of the original debt, the death of one joint debtor, the appointment of his representatives and the insolvency of the surviving joint debtors, and not a continuance of the original action against all the joint debtors.
    Appeal from an order made at Special Term, reviving an action. The .defendants were copartners, doing business under the firm name of Blackwell, Gross & Co.
    The action was brought by the plaintiff against the firm, to recover $450, claimed to be due him from the firm, for rent of a house and lot, alleged to have been leased to said firm.
    The summons was served on all the defendants. Blackwell and Gross did not answer. The defendant Buddington put in a separate answer.
    Pending the action, and on the 7th day of February, 1876, the defendant Buddington died. On the 8th day of April, 1876, the plaintiff entered judgment by default, against Blackwell and Gross, for the amount of the rent claimed to be due, with interest and costs.
    On the 29th day of May, 1876, H. Joseph Buddington was appointed, administrator of, etc., of the defendant Henry J. Bud-dington, deceased, by the surrogate of Ulster county.
    The attorneys for the plaintiff, upon affidavit of Beuben Bernard, one of his attorneys, dated June 17, 1876, and upon the pleadings and proceedings in the action, moved at Special Term, held at Kingston, on the 1st day of July, 1876, notice of motion having been served on the attorney for said Henry J. Buddington, for leave to revive and continue the action in the name of H. Joseph Bud-dington, as the administrator, of, etc., of said H. J. Buddington, deceased, in the place and stead of said deceased, as one of the defendants. The administrator appeared and opposed the motion. An order was made by said Special Term, allowing the plaintiff to proceed with and continue the action against said administrator, and to serve a supplemental or amended complaint, changing the title of the action, by making said H. Joseph Buddington, administrator, etc., sole defendant. From this order H. Joseph Budding-ton appeals to this court.

      J. M. Cooper, for the appellants.

      Bernard db Fiero, for the respondent.
   Per Curiam:

When an action is pending against several joint debtors and one of them dies, the action cannot, with accuracy, be said to survive against the representatives of the deceased debtor. The cause of action which may arise against them is not the simple common-law action on contract, which was originally brought against all the debtors. But it is an action of equitable character which arises on several facts: the original debt; the death of one joint debtor; the appointment of his representatives, and the insolvency of the surviving joint debtors. This, then, is a new action; not a continuance of the old.

This distinction is important. It shows that the representatives of the deceased are entitled to have the claim, thus arising, presented to them for allowance, or disallowance, according to the statute. They should not be brought in to contest the old action, in which, merely as representatives of the deceased, they cannot be liable.

This is not a question of mere practice, but of legal liability. Perhaps it would be a wise change of the law to make - the representatives of a deceased joint debtor, in all cases, jointly liable with the surviving joint debtors. But that is for the consideration of the legislature.

The order must- be reversed, with ten dollars costs and disbursements.

Present — Learned, P. J., BooKes and Boaedmak, JJ.

Order reversed, with ten dollars costs'and printing.


author: LEARNED, P. J. :

text:
    HARRIET VAN ORDER, Respondent, v. JAMES VAN ORDER, Appellant.

      Husband- and wife — contracts between — mlidity of — • Condonation of adult&t'y.

    A wife having commenced an action against her husband for divorce on account of his adultery, entered into an agreement in writing with him, whereby in consideration of a sum of money to be paid to her by him, she agreed to discontinue the action, to condone the adultery, to give up to him the custody of their child and relinquish her right of dower in his estate. In an action brought by her upon such agreement, held, that a wife has no power to enter into such a contract with her husband, and that the agreement to pay the money was void.
    A promise by a husband to pay money to his wife, in consideration of her condoning an act of adultery committed by him, is in violation of the rules of law and public policy and will not be enforced by the courts.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    In 1866 the plaintiff commenced an action against the defendant for a divorce, on the ground of his adultery. Subsequently the action was discontinued in pursuance of an agreement by which she agreed to condone his adultery, to give to him the care and custody of their child, and to execute any deed or conveyance proper to convey her right of dower in any real estate then owned or thereafter to be acquired by him, in consideration that he should pay to her the sum of $600 in annual payments of fifty dollars each. Subsequently .the defendant having procured a divorce from the plaintiff on account of her adultery, refused to make any further payments under the agreement, and thereafter this action was brought by the plaintiff to recover such payments.

      Ma/rcus Lyon, for the appellant.

      J. De Motte Smith, for the respondent.
   LEARNED, P. J. :

This is an action on an agreement made during coverture between husband and wife, by which he agreed to pay her' a certain sum of money. The consideration is the discontinuance of an action brought by her against him for alleged adultery, the condo-nation of such adultery; an agreement that he shall have the custody of a child of the parties, and that she will relinquish her dower and claims on his estate.

There are two defenses: first, that the agreement is void; second, that the defendant has been divorced from the plaintiff for adultery, committed subsequently to the agreement.

The so-called married woman’s acts have not removed the general disability of married women. (Perkins v. Perkins, 62 Barb., 531.) A contract like this was void at common law. (Beach v. Beach, 2 Hill, 260; 1 Black. Com., 442.)

The plaintiff cites cases to show that a husband may now enter into such an executory contract with his wife. But they do not sustain that position. Rawson v. Penn. R. R. Co. (48 N. Y., 212), only held that paraphernalia, gifts of the husband, were now the property of the wife; Whitney v. Whitney (49 Barb., 319), that the wife could sue her husband for her property wrongfully converted; Adams v. Curtis (4 Lans., 165), that she might sue a firm for her services, although her husband was one of the partners; Wright v. Wright (54 N. Y., 437), that a note made before marriage, in consideration thereof, was valid after marriage.

The present contract does not purport to concern the separate property of the wife. As an agreement to release dower it is invalid. (Townsend v. Townsend, 2 Sand. Sup. Ct., 711; Winans v. Peebles, 32 N. Y., 423.) It is not even sealed or acknowledged. The consent that the defendant should have the custody of the child is no consideration, and to enforce a promise by a husband :o pay money to his wife, in consideration of the condonation of adultery, would, I think, be a violation of rules of law, and principles of public policy. (Freethy v. Freethy, 42 Barb., 641; Gould v. Gould, 29 How., 441; Longendyke v. Longendyke, 44 Barb., 366.)

The plaintiff insists that this is not an agreement for a separation. It is therefore unnecessary to consider whether it is invalid, when viewed in that light. Nor need we discuss the effect of the subsequent divorce.

We think the agreement to pay the money was void, and the judgment and order should be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J., Boores and Boardman, JJ.

Judgment and'order reversed, new trial granted, costs to abide event.


author: LeaeNED, P. J.:

text:
    VILLAGE OF DEPOSIT, Plaintiff, v. ALVIN DEVEREUX, as Supervisor of the Town of Sanford, Broome County, Defendant.

      Legislative acts — special and general — construction of— Ghap 444 of 1874 — village of Deposit — chap. 330 of 1873.
    That provision of the charter of the village of Deposit which provides for the payment of all sums received for licenses into the treasury of the village, is not repealed by chapter 444 of 1874, creating boards of excise for the several counties of the State.
    Controversy submitted without action, under section 372 of the Code.
    At the annual town meeting of the town of Sanford in 1875, three commissioners of excise were elected. They granted certain licenses to persons within that part of the village of Deposit which lies within the town of Sanford, and received therefor $340. This money they paid to the defendant, the supervisor of that town, on the first day of March, 1876.
    The plaintiff claimed this sum under a provision contained in its amended charter, chapter 320 of 1873, which provides that all sums received for licenses should be paid into the treasury of the village, and made a demand therefor of the defendant, who refused to pay it over, on the ground that the provision requiring him so to do was repealed by chapter 444 of 1874. It has not been disposed of by the town board of that town.

      Alex. Gumming and T. <& A. More, for the plaintiff.

      JB. JV. Loomis, for the defendant.
   LeaeNED, P. J.:

In the case of the Village of Deposit v. Vail (12 S. C. N. Y., 310), this court held that the provisions of the charter of this village (Sess. Laws, 1873, chap. 330) touching excise matters, were not repealed, by implication, under the act of 1873, chapter 820. The present question is, whether those provisions are repealed by chapter 444 of the Session Laws of 1874, so far as relates to the disposition of the excise moneys.

The third section of this act is in these words : “ Nothing in this act shall affect the provisions of any special act, so far as the same provides for any special disposition of excise moneys and fines.” The village charter provides: “ Sums received for licenses, and fines and penalties collected, shall be paid into the treasury for the use of the village.” The village charter is a “ special act.” The clause cited, therefore, contains “ a special disposition of the excise moneys and fines.” The law of 1874 does not exempt all the provisions of any special act, but only those which provide for the disposition of the excise moneys and fines.

As to the composition of the board of excise it may therefore be that the provisions of the charter are superseded.

Considering this express provision of the Laws of 1874, and the general principle that a special act is not to be repealed by the implied force of general laws, I think that the plaintiffs are entitled to the money. This view is in harmony, also, with the case of Village of Gloversville v. Howell, decided by this court and reported 7 Hun, 345.

Judgment must be entered for the plaintiff.

Present — LeabNed, P. J., Bocees and Boardmaet, JJ.

Judgment ordered for plaintiff.