author: Danforth, Referee.

text:
    Clara E. Boone, Pl’ff, v. The Homestead Loan Association, Def’t.

      (Supreme Court, Monroe County,

      Filed April, 1893.)

    Building loan associations—Dividends—Premiums on loans.
    Premiums on loans, which are retained out of the amount of the loan at the time it is made, are earnings within the provisions of chap. 122, Laws 1851, as amended by chap. 564, Laws 1875, and the directors may properly include the amount of such premiums received during the current quarter in the declaration of a dividend.
    Action by a stockholder to have a mortgage canceled of record.

      John Desmond, for pl’ff; George W. Thomas, for def’t.

         Published by request.—Ed.

   Danforth, Referee.

The plaintiff became a member of the defendant association and a subscriber for sixty-four shares of its capital stock. Upon these shares the defendant loaned or advanced $6,720, and to secure its repayment the plaintiff on the 23d day of February, 1887, executed her bond and a mortgage upon premises then owned by her in fee. They were conditioned, so far as is now material, for the payment of sixteen dollars principal and six dollars and forty cents interest each week from the date of the mortgage until dues or instalments of principal and dividends credited upon said shares should equal the principal sum intended to be secured.

The complaint shows that prior to the 25th day of February, 1893, the plaintiff so far complied with that condition as to pay, first, the interest as it became due; second, $5,098 of the principal in money, and third, $1,158.40 by dividends declared from time to time by the defendant’s directors and credited to her, so that there remained unpaid only $463.60 of the mortgage debt. She tendered payment of that sum, gave notice of the withdrawal of her shares and demanded a discharge of the mortgage; it was. refused, and this action was brought to enforce her demand.

The facts stated in the complaint are not denied, and the only inquiry made necessary by the defendant’s answer is as to the competency of its directors to declare and credit those dividends in reduction of the plaintiff’s indebtedness, or, stated more specifically, the substantial question raised is whether certain premiums offered by members of the association for an award of loans, and paid by reserving the amount offered from the loan awarded and made, fall within the description of earnings contemplated by the statute under which the defendant was incorporated, Law's 1851, chapter 122, as amended in 1875, chapter'564, and in 1878, chapter 96; if they do, then may they properly be treated, first, as a present profit, or second, must their application be postponed until the mortgage is paid, or third, applied periodically in such proportions^ the past time of the loan bears to its unexpired time, or as the instalments of principal paid bear to those yet to mature.

The statute referred to makes provision for two classes of members in such associations as come within its terms; one, investors who desire the accumulation of a fund to be returned to them, and another borrowers, who would desire advances or loans. It also assumes that for the advantage of both classes entrance and other fees, fines and penalties will be imposed and interest on loans exacted, and declares that neither of those things nor the making of any monthly payment required by the articles of association, or of any premium for loans macfe to members, shall be deemed a violation of any statute against usury. Section 7, act - of 1851, supra. The same section prescribed a time for the termination of such corporation and prohibited “ any dividend ” of principal or of profits until such termination, or “ until its debts had been paid or otherwise sufficiently provided for.” Under that act it is plain the questions now presented could not have arisen. In 1875, however, the section referred to was so amended, chap. 564, Laws 1875, as to permit the “trustees of such company to declare dividends from time to time from its earnings, payable in such manner as may be provided in its articles.”

It is not contended that the constitution or articles of association of the defendant contravene the laws of the state or contain provisions other than those necessary for the convenient and effective conduct of the business which it might within the purview of the statute fairly transact. By those articles its capital stock is divided into shares of $105 each, payable in weekly instalments, and various sources specified from which income or earnings might accrue. They also-declare that with certain exceptions all moneys received by the association shall be loaned to its members upon interest; that every shareholder shall be entitled to a loan of §105 for each share held by him when, first, there is sufficient money in the treasury, and second, the security offered is satisfactory to the board of directors. ■ Article 10, § 2. In all cases, then, the want of the borrower is restrained by these two contingencies. The same article anticipates another contingency, viz.: more than one applicant and not enough money to supply all their applications. It therefore provides, third, in case there are several members applying for a loan at the same time, it (that is, the loan) shall be awarded to the member paying the highest premium therefor; who that member is is to be ascertained by offering the loan at auction and the manner of bidding is provided for. Under these circumstances it is not enough for the applicant to be a member of the association; that relation only serves to distinguish him from the community at large. He must also have a position of pre-eminence as to his associate members. That could be ensured only by successful competition. Other applicants must be outbid and the price for this new, and as to other members independent and purely incidental, relation is the sum bid or premium. There are thus two relations between the successful competing member and the association. Each has been entered into for a separate consideration. Entrance or admission fee paid for membership, a premium or a price paid for a preference which clothed him with new rights as the purchaser of the loan. These, however, only qualified him to enter into a third relation with the association, that of borrower. At the termination of the auction sale the association was entitled to the sum bid, and the loan awarded was at the risk of the applicant. It is provided (article 10, § 3) “ that in case a member to whom a loan is awarded neglects to take the same and give the required security, all losses accruing from such neglect shall be charged against him, be a lien upon his stock and the money remain at the disposal of the association.” Those losses are defined as including deficiency of premium upon a re-award of such loan and interest upon the loan to the time of re-award. These penalties are imposed as damages for neglect, and not compensation for the use of money. If, however, he takes the loan which he has bid for he must execute a bond for its amount and secure it by first mortgage upon real estate. By so doing the second transaction, one of lending and borrowing, is completed. It supersedes that which preceded it, and leaves the borrower under no other obligation than to make repayment of the principal in a prescribed mode, and until it is repaid to pay interest upon the loan. The.membership fee on each share and the premium for the award of the loan are gains before the loan is consummated, and. are therefore earnings of the association.

Another rule of the defendant (article 15) declares that 11 the board of directors shall at each quarterly meeting ascertain the net profits of the association for the previous quarter, from which they shall declare a dividend and cause the same to Be credited to each .shareholder, borrower and depositor,” but “ payable only on a withdrawal of all the stock represented by the account book of the withdrawing member presented with the notice of withdrawal.”

It appears that under this rule the directors have determined the amount of profits by including membership or entrance fees, fines, transfer membership fees, surplus profits from the previous quarter and premiums received during the then current quarter.

The argument of the defendant proceeds upon the assumption that these premiums are not in fact received, but enter into the bond and mortgage and are paid from time to time as the instalments called for by the instruments mature. If that be so, there would be abundant reason for calling the premiums to some extent unearned. It appears, however, the association before paying over the amount of the loan deducted the premium from the sum awarded, and delivered to the borrower, the residue. It actually had the premium in hand.

The contract on the part of each was to pay money. The bidder to pay the premium, the lender to pay or to advance the full amount of the loan awarded to the borrower. Either party could have insisted on such performance of the contract Had they done so, no one, I suppose, would deny that the premium, the whole of it, could be accounted as so much money gained or earned. Its payment would have formed no part of the mortgage obligation. The parties were not bound to insist upon this method. The course they did adopt led to the same result. There was reason and natural equity in that mode of proceeding. It was a simple matter of compensation and avoided the circuit of two actual payments. Both were implied and it was not necessary that they be formally made. A similar transaction, although raising a different question, was interpreted by the court of appeals in the case of the Concordia Savings & Aid Association v. Read, 93 N. Y., 474, a body incorporated under the statute above referred to. There was an auction sale and “ a highest bidder,” a loan made according to the award. The premium was deducted from the sum loaned and the balance only was actually paid to the borrower, but “say the learned court ” the whole sum was loaned or advanced and out of it he paid the premium which went into the treasury of the association for the 'benefit of all the stockholders. Such was the case here. See also, 62 Ind., 275.

The directors- of the association do not seem to have exceeded their authority in the declaration of dividends, and the plaintiff is, I think, entitled to the relief demanded, with costs.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Jane Ann Hulse, Adm’rx, App’lt, v. The New York, Ontario & Western Railway Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Fall of lumber from cab during removal.
    Plaintiff's intestate, an employe of one T., while engaged in removing lumber from a car, was injured by a fall of the lumber so that he died. The car was received by the defendant consigned to its engineer or superintendent, and was delivered to one B., with whom T. had contracted to build an ice house on the company’s land. The lumber was in separate, piles, secured by stakes connected over the lumber by crosspieces. T. directed the cross-pieces to be removed and also the stakes, and upon that being done the lumber fell upon the intestate, who was placing a plank against the car. Held, that a nonsuit was properly granted; that dafendant owed no duty to the intestate, and the lumber was piled safely and was securely bound together until the contractor, T., destroyed this security.
    Appeal from judgment in favor of the defendant, entered upon an order nonsuiting the plaintiff.
    The action was brought by the plaintiff as the administratrix of the estate of her husband, Charles Hulse, against The New York, Ontario & Western Eailway Company, to recover the sum of $5,000 for negligently causing the death of her said husband in the month of February, 1892.
    The plaintiff’s intestate was a carpenter, and at the time of his death was employed by one Terwilliger in the erection of an ice house on the lands of defendant near Wickham avenue depot in the city of Middletown, N. Y. It appears that the ice house was to be used by one Berry, who is a creameryman and owned a creamery to which the iee house was to be appurtenant; the lumber was consigned to a Mr. Canfield, the superintendent or engineer of the defendant, for its use, and was delivered to Berry. On the morning of the injury, Terwilliger, in company with the deceased and others, left his carpenter shop and went upon the land of the defendant for the purpose of unloading the timber. The car upon which it was loaded was not on the track nearest to the foundation, and one Girrard, who was acting as yard master for defendant, switched the car upon the side track nearest the foundation, and then Terwilliger gave the order to proceed to unload it; he ordered his men to first remove the binding pieces which were across the top of the load to the side stakes, and then to remove the side stakes, and then to get large planks and to place one end to the ground and the other near the top of the load in order to slide the lumber to the ground; and it was while the deceased was attempting to adjust one of these planks that the outside tier of lumber nearest to him collapsed, and he was crushed beneath it and received fatal injuries,

      W. F. O'Neill, for app’lt; William Vanamee, for resp’t.
   Barnard, P. J.

The facts in this case are substantially uncontradicted. The defendant company received a car load of lumber consigned to one of its engineers. One Berry was erecting a creamery on the company’s lands at his own expense. The lumber was delivered to Berry and his builder, one Terwilliger. They took possession of the car load of lumber, and Terwilliger, who was building by contract with Berry, proceeded to unload the lumber from the car. It was held in place by four stakes, two on each side, and these stakes were fastened on the top by cross pieces. Terwilliger commenced to unload by removing all these stakes and cross pieces both sides. The man on the top of the lumber, one of Terwilliger’s men, removed these stakes, and the lumber fell on the plaintiff’s intestate, causing his death. The lumber was piled in separate piles in the car, and there was nothing to hold one pile to the other piles when the stakes were removed ; and this is the only fact on which the plaintiff alleges negligence in the company. The nonsuit was properly granted. The lumber was piled safely, and was securely bound together, until the contractor destroyed this security. Tjje company were not bound to so load its cars that no accident could happen in unloading it after the stakes were removed. The piling was plainly to be secured, and it was the height of imprudence not to notice the fact that a pile of boards as high as this was piled was liable to fall over if it was left without support. The company owed no duty to the deceased. Terwilliger was the contractor, and he must respond to him. Hexamer v. Webb, 101 N. Y., 377; 1 St. Rep., 46; McAlpin v. Powell, 70 N. Y., 126.

The case is not like Thomas v. Henges, 131 N. Y., 453 ; 43 St. Rep., 288. There'the defendant owed a duty to keep a derrick on a dock in safe condition, and he failed to do so. It was a dock free for those who had business to moor at and unload by means of this derrick. The derrick was left unsafe and broke, and the owner was held liable to the party injured, although he had not any particular interest in the load which was being delivered at the dock.

Ho negligence was proven, and the deceased is not shown to be free from contributory negligence, even if the owner owed him a duty in respect to the unloading of the car.

Judgment and order denying a new trial affirmed, with costs.

Dykman and Pratt, JJ!, concur.


text:
    Elizabeth Heyler, Resp’t, v. The New York News Publishing Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Libel—Pleading—Retraction.
    It is not reversible error to refuse to permit an amendment on trial of an answer in an action for libel by alleging a retraction, where the answer has already been amended, and no reason for not having alleged it is given except an unverified statement of counsel that he knew nothing of the retraction until the day before.
    2. Same—Justification.
    It is no defense or justification to prove that the libelous charge was made on information obtained from others.
    Appeal from judgment in favor of plaintiff for $1,000 in an action of libel.

      Myer J. Stein and Wales F. Severance, for app’lt; Thomas C. Kadien (Louis J. Grant, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff recovered a judgment for one thousand dollars for a libel published by the defendant of and concerning her. She was a married woman and the article stated in effect that she was a single woman and had had a child which she strangled to death. The libel was one entirely without excuse or justification if the charge was untrue. The answer did not in direct terms state the truth of the charge, but pleaded that the circumstances under which the child was born led the public authorities to believe a crime had been committed. That the facts were published without malice and under the belief that it was true. The alleged libel was published on December 16, 1890, When the case was called for trial in June, 1892, the defendant made an application to amend the amended answer by stating that a retraction had been made on the 19th of December, 1890. Assuming that such a statement was proper in an answer and that it tended in any way to mitigate the wrong done if a wrong had been done, the trial judge did not abuse his discretion in denying the application. An answer had been served in November, 1891, and an amended answer bad been put in upon motion on the 7th of June, 1892. No reason was given beyond an unverified statement of counsel that he knew nothing of the retraction until the day before the trial. No reversible error is shown by the refusal to permit the amendment on this state of the facts. The defendant knew of the retraction and should have pleaded it in time to permit a trial under the usual modes of procedure which are designed to make an issue for the trial. The publication by defendant was proven. The paper of defendant in which it was contained was bought at defendant’s office in Park Eow and the defendant’s witnesses prove that it was published by the defendant. Upon the merits the verdict is sustained by the proof. The charge was exceedingly injurious and the jury has said that it was unjustified and not so far excused but that the plaintiff was entitled to substantial damages. No error was committed on the trial. There are several exceptions taken to rulings on collateral issues and to the judge’s charge and refusal to charge. It was no defense or justification to prove that the charge was made on information obtained from others. ■ It was proven that the article came in as news and was published without any express malice on the part of the defendant

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman. J. Pratt, J.

text:
    Mary Thorn, Ex’rx, Pl’ff, v. Oliver T. Beard, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Costs—Assignee of claim as collateral not a person beneficially interested within § 3247 of the Code.
    An assignment of a cause of action as collateral security is not such a transfer as makes the assignee liable for costs under § 3247 of the Code. The words “ beneficially interested therein,” as used in said section, mean one who takes the absolute title therein, and not a person who merely holds it as collateral security for the payment of a debt.
    Appeal from order denying motion to compel Peter B. Hayt to pay defendant’s costs.

      Oliver T. Beard, app’lt in person; Hackett & Williams, for Peter B. Hayt, resp’t.
   Dykman. J.

William I. Thorn was a lawyer 'in the city of Poughkeepsie, and died on the 1st day of March, 1890.

Having performed professional services for the defendant, he assigned his claim therefor to Peter B. Hayt, on the 3d day of January, 1888, as collateral security for an indebtedness to Hayt, and for certain contingent liability as indorser of notes.

In May, 1889, Thorn commenced this action against the defendant to recover such claim.

He obtained a judgment against Beard, which was affirmed at the general term, but reversed in the court of appeals.

Mary Thorn was substituted as the plaintiff.

Hpon the new trial after the reversal by the court of appeals, the defendant obtained a judgment for costs, and thereafter made a motion at the special term to compel Mr. Hayt to pay the costs upon the ground that he was the party in interest for whose benefit the action had been prosecuted.

The motion was denied, and the defendant has appealed from the order of denial.

The appeal cannot prevail for the reason that an assignment of a cause of action as collateral security to an indebtedness of the assignor to the assignee is not such a transfer as makes the assignee liable for costs. Peck v. Yorks, 75 N. Y., 421.

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

Pratt, J.

Motion to make an assignee of a claim in suit pay costs.

It was held in the case of Peck v. Yorks, 75 N. Y., 421, that an assignment of a cause of action made simply as collateral to an indebtedness of the assignor to the assignee is not such a transfer as makes the assignee liable for costs under the provisions of the old Code of Practice, § 321, and this rule has been adhered to ever since.

It is true the Code was re-enacted and amended by substituting § 3247 of the New Code of Procedure in place of § 321 of the old Code, yet in respect to this matter the latter section is not materially varied from the former.

This is so stated in the notes to § 3247 of New Code. See Banks Brothers’ Annotated Code.

The woi’ds “beneficially interested therein” mean one who takes the absolute title therein as transferee, and not a person who merely holds it as collateral security for the payment of a debt.

In this case it appears that Hayt, the person against whom the relief was sought, was a holder of the claim in suit as collateral security for a debt due him from the plaintiff and in no other way was interested m said suit.

Order affirmed, with costs and disbursements.

Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Mary Featherson, Resp’t, v. The President, etc., of the Newburgh & Cochecton Turnpike Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Obstructions in highway—Defense.
    Allegations in an answer to an action for injuries caused by an obstruction in defendant’s road which it permitted to remain there, setting forth that such obstruction was placed and maintained by a person named; that _ an action had been brought by plaintiff against such person for the injury ' and that she was defeated therein because of contributory negligence, sets up a valid defense to the action, as the judgment in the former action relieved such person from liability for the injury to plaintiff or any person claiming under her, and hence deprives defendant of its right to subrogation in case of a recovery against it.
    Appeal from order sustaining a demurrer to one of several separate defenses set up in the answer.

      E. A. Brewster, for app’lt; A. H. F. Seeger, for resp’t.
   Dykman, J.

This is an appeal from the order sustaining a demurrer by plaintiff to one of the separate defenses set up in the answer of the defendant. The action was for the recovery of damages for personal injuries sustained by the plaintiff upon the defendant’s road caused by an obstruction which was permitted to remain there by the defendant After stating that the defendant was a turnpike corporation, organized under a special act of the legislature of the state, and that the road was a public highway, and that it was the duty of the defendant to keep and maintain the same reasonably free from obstructions, the complaint proceeds to allege that while she was walking upon the road or highway of the defendant opposite and near the premises of one Daniel A. Shafer, in the village of Montgomery, in the county of Orange, she fell over a log of wood lying upon a stone wall built upon such highway bounding an area or passage way over the highway to the basement of the barn or stable upon the premises of Shafer, which log, stone wall and area or passage way were carelessly and negligently allowed and permitted by the defendant to be open and to obstruct defendant’s said highway, in consequence of which negligent act of the defendant the plaintiff was precipitated over the said log and into the said area or passage way upon the defendant’s road, and sustained the injuries complained of in the complaint.

In the answer to the complaint, the defendant set up a separate defense in the following words: “ For a further answer and defense the defendant states that the alleged obstructions over which the plaintiff alleges that she tripped and fell were placed and maintained where they were by one Daniel H. Shafer, and if the plaintiff should recover damages against these defendants in this action, they would have a right of recovery over against said Shafer for the same, if such right of recovery had not been destroyed by the judgment in the action hereafter mentioned, but the plaintiff cannot maintain the present action, because on March 22, 1892, she brought her action in this court against said Daniel A. Shafer, to recover her damages sustained by means of the same identical injuries alleged in the complaint in this action. Said Shafer put in his answer to said complaint alleging among other things that such injuries were caused by the contributory negligence of the plaintiff. Said action was duly tried, and decided on its merits in favor of the defendant, and judgment in said action was duly entered in the Orange county clerk’s office, November 21, 1892, in favor of defendant Shafer against the plaintiff, and this defendant claims and insists that such judgment is a bar to the present action, because it is an adjudication against the plaintiff’s right to recover for said alleged injuries, and also because it deprives these defendants of the right of recovery over against said Shafer.

The defendant, therefore, claims that the complaint in this action be dismissed, with costs. «

To this portion of the answer of the defendant the plaintiff interposed a demurrer, which was tried at special term and sustained, and the defendant has appealed to this court.

The statement in the answer shows that Shafer was the wrongdoer, and that his act was the cause of the injury sustained by the plaintiff. So it seems to follow that if Shafer was not liable for creating and maintaining the obstruction the defendant cannot be liable for the failure to remove them.

If Shafer was not liable because the plaintiff’s own negligence produced the injuries of which she complains, the defendant is not liable for the same reason. Shafer and the defendant were not joint wrongdoers, and the rule that one wrongdoer cannot recover against or compel contribution by another does not apply.

The relation between Shafer and the defendant was analogous to that of principal and agent or principal and surety, or master and servant, and the rule in such cases is that a judgment in favor of the principal or the surety upon a ground equally applicable to both should be accepted as conclusive against the plaintiff’s right of action. Herman on Estoppel, 169; Castle v. Noyes, 14 N. Y., 329.

It is now settled in this state that where a person has negligently or wrongfully created an obstruction or defect in a street and a municipal corporation-/ is compelled to pay a judgment for damages sustained by an individual caused by such obstruction or defect, the municipality has an action over against the person creating or maintaining such obstruction or defects. Village of Port Jervis v. First National Bank of Port Jervis, 96 N. Y., 550.

Under this rule of law, the turnpike company would be entitled to recover from Shaffer any amount the company might recover against it. Such right would rest upon the principles of subrogation. The turnpike company would be entitled to be subrogated to plaintiff's right of action against Shafer, but the judgment on the merits in Shafer’s favor in the plaintiff’s suit against him relieves him of all liability to the plaintiff or any person claiming under her for the same cause of action.

The plaintiff, therefore, by being barred by the judgment in Shafer’s favor, is equally barred from any action against the company under the rule that whatever discharges the principal discharges the surety. As she had no cause of action against Shafer, she can have' no cause of action against the defendant, and, therefore, the portion of the answer to which the demurrer relates does set up in our judgment a valid defense to the action, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the defendant should have judgment upon the demurrer, with costs.

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


author: Pratt, J.

text:
    Elizabeth A. Lydecker, Resp’t, v. Henry M. Valentine, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Contract—Board and rooms—Damages for breach.
    In an action for breach of contract for room, and board for a specified period, by reason of defendant leaving before the expiration of the term, the-damages cannot be the whole contract price, but only the profits which the plaintiff would have made if defendant had carried out the contract.
    Appeal from judgment in favor of plaintiff, entered upon a. verdict for $201.

      Snider & Hopper, for app’lt; A. S. Tompkins, for resp’t.
   Pratt, J.

This action was for damages for'breach of a contract, for rooms and board with the plaintiff.

The complaint alleged that the defendant agreed to pay plaintiff for a room and board fourteen dollars per week from May 1 to November 1, 1890. That he did so pay until June 1, 1890, when he left the premises.

The court charged the jury that the plaintiff was entitled to recover the amount of the contract price for board and room, less the amount of $107, which the plaintiff had from other parties for the same room. This, we think, was error. The damages could not be the whole contract price, but only what the plaintiff lost by defendant not being there, i. e., the profits she would have made if defendant had carried out the contract.

The defendant’s counsel asked the court to charge that proposition, but the court refused, to which exception was taken.

The case was bare of evidence on which damages could be computed. The plaintiff ought to have proved how much profit she could have made if defendant had kept his contract as basis for the jury to estimate the damages. See Wetmore v. Jaffray, 9 Hun, 140; De Lavalette v. Wendt, 11 id., 432.

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

Barnard, P. J., and Dykiian, J., concur.


text:
    Horace W. Garland et al., Resp’ts, v. Cortlandt S. Van Rensselaer, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Mechanic’s lien—Consent of owner—Action on bond.
    The complaint in an action on a bond given to procure the discharge of a mechanic’s lien alleged that appellant was the owner of certain land, which he contracted to sell to the other defendant, and the latter took possession and contracted with plaintiffs to build a small house, which plaintiffs performed with the knowledge and consent of appellant; that the other defendant subsequently released its right, title and interest to appellant, who filed the bond to release plaintiffs’ lien, with two sureties, whose names were not given, and that no part of the contract price for plaintiffs’ work had been paid. Feld, that the complaint set forth a cause of action; that appellant was to be deemed the owner until his deed was delivered, and that plaintiffs had a lien.
    3. Same—Parties.
    In an action on a bond 'given to discharge a mechanics’ lien the sureties on the bond are not necessary parties; the principal debtor can be sued alone on it.
    Appeal from judgment entered upon order overruling demurrer to the complaint.
    Action upon a bond given tó discharge a mechanic’s lien.
    The complaint alleges that prior to the 1st of October, 1891, Cortlandt S. Van Rensselaer was the owner of certain premises •described; that on that day he entered into a contract with the company to convey said premises to said company; that under said contract the company took possession of the premises, and while in possession contracted with the plaintiffs to erect a building thereon, for which the company agreed to pay the sum of $150; that plaintiffs performed said contract, and that such performance was with the knowledge and consent of Cortlandt S. Van Rensselaerthat the work was worth said sum ; that a lien was filed for said work, and thereafter the company released and relinquished to Van Rensselaer the right, title and interest in said premises; that Van Rensselaer filed a bond with sureties and had the lien canceled of record, and that no part of the contract price for said work has been paid. The defendant, Van Rensselaer, demurred to the complaint on the ground that it showed no cause of action as against him.

      Howard Allison (Isaac N. Miller, of counsel), for app’lt, Charles P. Cowles and Justus A. B. Cowles, for resp’ts.
   Barnard, P. J.

Under the lien law, chap. 342, Laws of 1885, the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell the same to the defendant, Commonwealth Security Company. The security company built a small house on the land with lumber obtained of the plaintiffs with the knowledge and consent of Van Rensselaer. By the 5th section of the lien act Van Rensselaer was to be deemed the •owner until the deed was actually delivered. By the 24th section of the act the owner, by filing a bond with surety, can procure an order discharging the lien. Such a bond was given and approved by the court, and an order entered that the lien be discharged and canceled of record. The bond and order are made part of the complaint by an allegation to that effect and not by the actual annexation of a copy thereof to the complaint. It does not appear who signed the bond besides Van Rensselaer. Van Rensselaer alone demurs. His demurrer was properly overruled. He could only be made liable by proof that a lien actually existed on his property. That made the defendant, company, a necessary party. It was not necessary that the plaintiff should make the sureties to the bond parties. The principal debtor can be sued alone upon it. Code § 454.

The order overruling the demurrer and the interlocutory judgment upon it, must therefore be affirmed, with costs.

Pratt, J., concurs; Dykmah, J., not sitting.


text:
    Hugo Weil, App’lt, v. Charles A. Hill, Def’t. Embree Hill, Resp’t, v. Charles A. Hill, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Judgment—Confession—Statement.
    A statement in a confession of judgment that the debt arose from the facts that at the time defendant became a producer of milk and farmer plaintiff furnished him with cows, horses, wagons and other articles required in the business, hired a farm and paid the rent therefor, and from that time to the present advanced money to enable him to conduct the business and support his family, which together were worth a sum specified for which the judgment was authorized to be entered, is sufficient to sustain the judgment entered thereon.
    Appeal from order denying the motion of the plaintiff in the first above entitled action to set aside the judgment entered on confession in the second action on the ground of the insufficiency of the statement on which it was entered.

      Alex. Finelite, for app’lt; Henry C. Henderson, for resp’t.
   Dykman, J.

The plaintiff in action number two obtained a judgment by confession against the defendant in that action on the 6th day of October, 1892, for the sum of §8,016.50.

The plaintiff in action number one obtained a judgment in that action against the defendant on the 22d day of November, 1892, for the sum of §192.18.

The plaintiff in action number one made a motion to set aside the judgment in action number two on the ground of the insufficiency of the statement upon which it was entered.

The motion was denied, and this appeal is from that order of denial.

The question upon this appeal, therefore, is whether the statement is a sufficient compliance with the provision of the Code under which it was made.

So far as this case is concerned, the judgment being for money due, the requirement of the statute in respect to the written statement is this: “ It must state the sum for which judgment may be entered, and authorize the entry of judgment therefor. If the judgment to be confessed is for money due or to become due, it must state concisely the facts out of which the debt arose, and must show that the sum confessed is justly due or to become due." Code Civ. Pro., § 1274.

This section of the statute has remained substantially unchanged and in its present form since the adoption of the Code in 1848. Such alterations as it has received have been made to avoid repetition and secure grammatical accuracy. Note to § 1274.

The language has not been free from obscurity, and in the early days of the first Code the section came many times before the courts for construction, and the adjudicated cases in which the statute came under review are authority now, because, as we have already said, it has remained substantially unchanged.

The rule established by the reported cases seems to be that “ a concise statement of the facts out of which the indebtedness arose is required so that any party interested may be able to investigate the matters and thus ascertain whether the confession of judgment was accurate, honest and bona fide. It may also be supposed that it was the purpose,of the legislature that the statement of facts should be so definite that the affiant would be exposed to punishment for perjury in case of any misstatement." Wood v. Mitchell, 117 N. Y., 441; 27 St. Rep., 704.

Turning now to the statement in this case, we may examine it in the light of this rule. The statement is as follows:

“I do hereby confess judgment in this action in favor of Embree Hill for the sum of $8,000 and authorize judgment to be entered therefor against me.
“ This confession of judgment is for a debt justly incurred and now due to the plaintiff arising upon the following facts: That at the time I began business as a producer of milk and farmer, the plaintiff furnished me with cows, horses, wagons and other articles and utensils required in the business, and hired a farm for me, paying the rent therefor, and has since that time advanced me moneys to enable me to conduct said business and to support my family down to the present time, which said money so advanced and the horses, cattle, wagons and utensils furnished as aforesaid were worth upwards of $8,000.”

The statement was signed and verified by the defendant in the manner required by the statute.

Thus we have a statement that the amount for which the judgment is confessed is due for cattle, horses, wagons and agricultural implements, rent of a farm paid by the plaintiff and money advanced for the conduct of the business and support of the defendant’s family; and although no dates are given, the advancement of money in the business continued to the time of the confession of judgment.

It is easily inferred that the farming by the defendant had been continuous, and so the indebtedness had been incurred from time to time for a year or more previous to October, 1892.

The statement is as particular and full as the statements in the cases of Neusbaum v. Keim, 24 N. Y., 329; Lanning v. Carpenter, 20 N. Y., 447, and Freligh v. Brink, 22 N. Y., 418, and all those statements received the approbation of the court of appeals^

It furnished sufficient facts to enable any party interested to investigate the transactions and ascertain the truth and accuracy of the statement.

It would be easily ascertained whether the defendant hired a farm and engaged in the milk business, and whether the plaintiff paid the rent therefor. Also, whether stock and implements were furnished by the plaintiff to the defendant, and the time of all those transactions.

Our conclusion is that the statement is sufficient and that the order should be affirmed, with ten dollars costs and disbursements.

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


text:
    Abel Crook, Resp’t, v. George E. Hamlin et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Trial—Failure op court to hear all the testimony.
    A large part of the testimony in this action was taken, by agreement, before the stenographer during the absence of the judge. On the summing up each counsel stated the facts upon which he relied, but there was no dispute about the facts, and the court did not require the testimony so taken to be written out. Held, that this did not make a mistrial, and that a motion to set aside the judgment on that ground was properly denied.
    Appeal from order denying motion to vacate a judgment of the'special term on the ground that the court neither heard the testimony of the witnesses, save a small portion thereof, nor read the same.
    Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lts ; John L. Hill, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to vacate the judgment in this action entered upon the decision of a judge after a trial before him at special term without a jury

The motion was made by the defendant against whom the judgment was entered, and was based upon the allegation that the trial judge did not hear all the testimony, and did not read it all because it was not written out by the stenographer by whom it was taken.

The material facts seem to be these: The trial of the action commenced on the 19th day of December, 1892, and testimony was introduced before the judge until recess. The judge did not appear after the recess, and the parties proceeded to take testimony before the stenographer by agreement during the afternoon and again the next day in the absence of the judge.

The trial was then adjourned by consent until the 80th day of December, 1892, and on that day the judge was present, some further testimony was then taken and the trial was closed; at that time the testimony taken in the absence of the judge was, "undisputed, to say the least, if it was not agreed upon.

The case was argued before the judge, and it appears that each counsel stated the facts upon which he relied, but there was no-dispute about the facts, and the judge found it unnecessary to-cause the testimony to be written out, as there was no necessity for a reference thereto.

This motion was not based upon errors committed during the trial, because such questions will be examined upon the appeal from the judgment. The claim seems to be that there has been a mistrial, or rather no trial according to legal requirements.

We cannot coincide with that view. The trial judge gathered the facts from the concession of the counsel upon the argument, and found the facts undisputed, and decided the questions of law upon that theory.

If there has been error it will be detected and decided upon the appeal, but the motion to vacate the judgment was properly denied and the order should be affirmed, with ten dollars costs and disbursements.

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


text:
    The Trustees of the Freeholders and Commonalty of the Town of East Hampton, Pl’ffs, v. Jeremiah H. Vail et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Ejectment—Grown patent—Construction .
    Plaintiff claims title to land under the waters of Port Pond Bay under a patent from the crown. The description in the patent ran from the east hounds of South Hampton easterly to the Port Pond and thence east to the extent of the island; “ on the north they are bounded by the bay and on the south by the sea * * * together with all havens, harbors, creeks, * * * and all other profits, commodities, emoluments and hereditaments to the said tract of land and premises within the limits and bounds aforementioned.” Held, that Port Pond Bay was not within the limits and bounds named, and hence was not included in the grant by the words-“together with all havens, harbors, creeks, etc.”
    Exceptions ordered heard at general term in the first instance-after verdict in favor of defendants directed by the court.

      Wilmot M. Smith (Charles R. Street, of counsel), for pl’ffs; Thomas Young and T. M. Griffing, for def'ts.
   Dykman, J.

This is an action of ejectment for the recovery of land under the water of Fort Pond Bay on the northerly side of Long Island.

The plaintiffs claim title under a patent from Governor General Richard Hichols'to John Mulford and others for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of Bast Hampton in 1666, and a confirmatory grant from Governor General Thomas Dongan in 1686 to Captain Thomas James and others, freeholders and inhabitants of Bast Hampton.

The primary and paramount question is whether the premises were included in the patents, and that depends upon the language of the instruments in describing and bounding the same.» That language is this: “All that tract of land which already hath beene or that hereafter shall bee purchased for and on the behalf of the said towne, whether from the natives (Indian proprietors) or others within bounds and limitts hereafter set forth and exprest, vizt., That is to say, their West bounds beginning from the East limitts of the bounds of South Hampton (as they are now laid out and stalc’t according to agreement and consent) so to stretch East to a certain Pond commonly called the 'Fort Pond, which lyes within the old bounds of the lands belonging to the Muntauke Indyans, and from thence to go on still East to the utmost extent of the Island, on the North they are bounded by the Bay and on the South by the sea or maine ocean. All which said tract of land within the bounds and limitts before mentioned, and all or any plantation thereupon, from thence forth are to belong and appertain to the said towne, and bee within the jurisdiction thereof, together with all havens, harbors, creeks, quarryes, woodlands, meadows, pastures, marshes, waters, lakes, rivers, ffishing, hawking, hunting, fowling, and all other profits, commodityes, emoluments, and hereditaments, to the said tract of land and premises within the limitts and bounds aforementioned, described, belonging or in any wise appertaining.” Then follows the usual habendum clause.

The description of the premises in the confirmatory patent from Governor Dongan is substantially the same.

Fort Pond Bay is not within the limits and bounds named in either patent, but the plaintiffs insist that it was included therein, and conveyed thereby by the words, “ together with all havens, harbors, creeks, etc.; ” • but it must be remembered • that those words are followed by the words “within the limits and bounds aforementioned.”

That clause is restrictive of all the subjects named, and therefore nothing is included in the patents unless it be within the limits and bounds specified therein.

The language is peculiar, and the description is somewhat uncertain. The west bounds of the premises begins at the east limits of the town of South Hampton. Then the language describes a single line stretching east to Fort Pond, and from there still east to the utmost extent of the island, and there the line terminates. That line therefore includes nothing, but it is immediately followed by these words, “ on the north they are bounded by the bay, and on the south by the sea or main ocean.” The premises described in the patent, therefore, are bounded on the west by South Hampton, on the north by the bay, and on the south by the Atlantic Ocean.

What body of water is intended to be designated by the word ‘ bay’ as the northern boundary of the premises is not very apparent. It seems to apply only to the sound, as that is the body of water on the north, and the only water that extends along the whole of the north side. The word can scarcely apply to Fort Pond Bay, for that only extends for a short distance.

Whatever it may designate, however, it carries the grant to the water only, and the water is the north boundary. In respect to Fort Pond Bay, its south shore is the north bound of the premises.

In respect to the contention of the plaintiffs that nothing else can pass under the word haven, the answer is that it is not essential that anything should so pass. There may have been no quarries; and if none, then nothing passed by virtue of that word.

Much testimony was offered upon the trial to show that Fort Pond Bay was a good harbor; but it is not so secured by the circumjacent land as to be entitled to that designation. Like every lee shore it is a secure and quiet place for vessels when the wind blows from the land; but when the wind is from the sound there is no protection.

Upon careful consideration we find no errors, and our conclusion is that the verdict was properly directed for the defendants, and the exceptions should be overruled, and judgment entered upon the verdict for the defendants, with costs.

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


text:
    Helena Baas, Resp’t, v. Henry J. Pain, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Depositions—Examination of defendant to enable plaintiff to frame AMENDED COMPLAINT.
    Where a defendant in an action against a co-partnership alleged to exist between him and others denies the existence of such partnership, an order for the examination of such defendant to enable plaintiff to ascertain the names of the persons who should be made defendants in an amended complaint may properly be granted.
    Appeal from order for the examination of the defendant Henry J. Páin as a party to ascertain the composition of “ James Pain & Sons, London, England, represented by Henry J. Pain.”
    Action was begun by the plaintiff against James Pain, Henry Pain and John Doe by service of the summons and complaint on Henry J. Pain.
    The complaint charged a copartnership as existing between said defendants. The answer denied it. The action was brought for damages to plaintiff by fireworks set off at Coney Island.
    Upon receipt of the answer, plaintiff at once moved to examine defendant Henry J. Pain to ascertain who were the proper parties defendant, whom plaintiff had designated as Joe Doe, for the purpose of making such parties defendant and serving an amended or supplemental complaint

      William S. Cogswell, for app’lt; Hector M. Hitchings, for resp’t.
   Dykman, J.

This is an appeal from an order for the examination of the defendant, Henry J. Pain, as a party defendant to ascertain the composition of James Pain & Sons, to the end that the plaintiff may determine the names of the persons who should be made parties defendant in an amended complaint which is rendered necessary by the answer of the defendants.

We think the order was properly made and should be affirmed, with ten dollars costs and disbursements.

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


text:
    Theodore H. Silkman, App’lt, v. The Board of Water Commissioners of the City of Yonkers, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Yonkers—Water rates not a tax.
    The water rates established by respondent pursuant to chap. 36, Laws 1873, for the use of water, are not taxes, and no notice is necessary before imposing the same.
    Appeal from judgment dismissing the complaint on the merits.
    Action to restrain defendant from cutting off the supply of water from plaintiff’s premises in the city of Yonkers for failure to pay a water rent due, and to recover certain amounts paid by plaintiff for water' since October 1, 1887, in excess of fifteen cents per 100 cubic feet, which plaintiff claims to be the only charge defendant can legally make.
    Defendant is a corporation organized by chap. 36, Laws 1873, which requires the commissioners to establish a scale of rents to be called water rents. Such rates have been fixed and the surplus of earnings, if any, in each year are turned over to the city treasurer and used to pay the interest on the water bonds and to reduce the tax levied to form a sinking fund for their redemption.
    Plaintiff obtained the water from defendant upon a requisition filed by him, in which he asked for water, and in which he agreed that it should be supplied under the rates, and subject to the rules, regulations and ordinances of defendant, and a meter was placed on his premises. In each quarter from Sept. 1, 1887, to 1890, bills in accordance with such rules and regulations were presented to plaintiff and paid by him under protest, and in September, 1890, a bill was presented, which he refused to pay, and defendant threatened to cut the water off, whereupon this suit was brought.
    Plaintiff claims that these water rates are in the nature of taxes, and that notice must be given before they can be levied, and that the levy must be of equal amount on each piece of property; while defendant claims that they are rents, and the right to fix them was in its discretion.

      William P. Fiero, for app’lt; Joseph H. Daly, for resp’t.
   Barnard, P. J.

The water rates are not taxes. The act under which the defendants were incorporated, chap. 36, Laws of 1873, directs the commissioners to establish a scale of rents payable in advance or upon a stated term of credit, to be called water rents. The board were authorized to cut off the supply of water if these rents were not paid. There is no basis for terming these water rents a tax. Provident Inst. for Savings v. Mayor, 113 U. S., 506; Treadwell v. Van Schaick, 30 Barb., 444.

The commissioners did fix the rates, and it was supplied and paid for, but under a protest on account of his receiving no notice of the levying of a tax on the land. There is no lien on the land for water furnished and not paid for. There will be a tax on land for a deficiency to meet the purpose of the act, and when this tax is'laid it-will be upon notice.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Mariam J. Quimby, App’lt, v. The New York Life Insurance Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Insurance (life)—Payment of first premium.
    The mere possession of a life policy which contains no receipt for the first premium, but states that “ in further consideration of the sum of * * * to be paid in advance, etc.,” is not evidence that the first premium was paid.
    3. Same.
    In an action upon such a policy the company’s agent testified that the first premium was not paid, and his brother testified that he took the policy to the plaintiff’s husband, who said he could not pay then; that he left the policy with him for inspection, and told him it would not be in force until the first premium was paid. It also appeared that the agent wrote for the money or the return of the policy. Held, that there was no waiver of payment, and that the complaint was properly dismissed.
    Appeal from judgment in favor "of defendant dismissing the complaint, and from order denying a motion for a new trial.

      A. Simis, Jr., for app’lt; Wm. B. Hornblower and James Byrne, for resp’t.
   Dykman, J.

This is an appeal from a judgment and order denying a motion for a new trial.

The action is upon a policy of insurance upon the life of William D. Quimby, the husband of the plaintiff.

The complaint alleges that on or about the 22d day of June, 1892, William D. Quimby insured his life in the defendant company; that by the policy of insurance issued by the company it promised and agreed to pay to the plaintiff the sum of $5,000 upon receipt of proofs of the death of the insured during the continuance of the policy; that the insured died on the 16th day of August, 1892; that proofs of death were served, and the defendant refused to pay the amount of the policy to the plaintiff.

The answer of the defendant denies that any policy of insurance in favor of the plaintiff on the life of her husband was ever issued to, him, and denies that he ever insured his life for the benefit of the plaintiff.

The answer sets up other defenses, to which attention may be given later on.

The action was tried at the circuit before a jury, and at the close of the case a verdict was directed in favor of the defendant. There is no substantial dispute about the facts.

Upon the trial the plaintiff produced the policy of insurance, and testified that she received it from her husband, and admitted that she had never paid any premium upon it.

The defendant then put in the testimony of the agent, William O. B. Clifford, who wrote the application of Mr. Quimby.

He testified that the first premium had never been paid, and further, that he delivered the policy to his brother for delivery to Mr. Quimby, and gave his brother a receipt to Quimby, provided he paid the money.

The defendant called the brother, F. W. Clifford, as a witness, and he testified that he was a clerk for William O. B. Clifford, that his brother handed him the policy at the office, that he delivered it to Quimby, and that Quimby read the policy through and asked him numerous questions as he proceeded, and then said that he hadn’t the money at present, but that if Clifford would call after the first of July, he would have the money for him. Clifford then told Quimby that he was instructed by his brother to leave the policy for inspection and that the policy was not in force until the first premium was paid. Although he went many times to see Quimby he was unable to obtain the policy from him or procure payment of the first premium.

It was conceded upon the trial, in order to obviate the necessity of an adjournment, that a witness, a clerk in the home office of the defendant, would testify that no payment had been received of the first premium at the home office of the company.

A letter from the agent Clifford to Quimby was put in evidence by the defendant, in which he says, “You will greatly oblige me by mailing check for the amount agreed upon, or if such is impossible, return the policy at once.”

It seems to have been the reliance of the plaintiff that the possession of the policy was prima facie proof that the first premium had been paid.

While it is ordinarily true that the production by the plaintiff of a policy of insurance is prima facie evidence of the payment of the first premium, for the reason that the policy which is in her possession contains an admission of such payment. Ordinarily a policy reads, in consideration of the sum of blank dollars to them in hand paid at the office of the company, and such a statement in the body of the policy is as good as a similar statement contained in a separate paper which constitutes a receipt for the first premium.

In this case, however, the corresponding clause in the policy is as follows : “ In further consideration of the sum of $67.50 to be paid in advance.” So that the language here does not constitute an admission that the premium has been paid.

In this state the acknowledgment in the policy of the actual payment of the first premium is only prima facie evidence of its payment.

In the case of Sheldon v. Atlantic Fire & Marine Insurance Co., 20 N. Y., 460, it is said: In any case, "the delivery and possession of a policy containing a receipt for the premium affords evidence of its payment, or of a waiver of its pre-payment, but is not conclusive.”

This shows that it is not the mere possession of a policy, but the possession of a policy containing the receipt for the premium, upon which the courts rely for the presumption. Plainly, therefore, there is a substantial distinction between the phrase in the old policy forms and the phrase in the policy in the case at bar. And the mere fact that the policy in the new form is in the hands of the plaintiff is no evidence that the first premium has been paid. But even if the possession of the policy in this action did raise the presumption that the first premium had been paid, the presumption has been met and overcome by conclusive evidence.

There is no necessity for resort to presumptions to ascertain the true nature of the transaction concerning the issuance of the policy in this case.

The testimony of the agent shows that the policy never had any inception as an active policy of insurance; that it never was delivered with the expectation that it was in operation or would be so or would be effectual as a valid operative policy until the first premium had been paid.

It is to be said further, that there is no evidence tending to show that the payment of the first premium had ever been waived.

The reliance of the plaintiff is solely upon the fact that the policy was delivered to Clifford, and from that alone argues that the payment of the first premium was waived; but, as we have seen, the circumstances attendant upon the delivery show plainly that the policy was not in force or intended so to be until the first premium was paid.

If under these circumstances the case had been submitted to the jury, and a verdict had been found in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside.

There have been decisions in this state to the effect that the delivery of a policy of insurance without receiving payment of the premium is a waiver of the condition therein, but as we have already seen, that class of cases can have no application to this case. The policy was never delivered with any expectation that it would become effectual, and therefore never had any legal inception.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

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


text:
    The Port Jervis Water Co., Resp't, v. The Village of Port Jervis, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Villages—Implied contract to pat por water for public purposes.
    Plaintiff furnished defendant with water for the public fountain, water ■ troughs, jail and hose house, and for sprinkling the streets, without having an actual contract therefor. Held, that a contract for the payment of its value would be implied.
    2. Same—Right of action for claim.
    Where there is sufficient authority in the charter to enable village officers to pay the amount of a just claim presented to them, but they refuse to do so and neglect to put the proper machinery in operation to raise the funds to pay it, the creditor has a right of action against the village therefor.

      Appeal from judgment in favor of plaintiff, entered on the decision of the court on a trial without a jury.

      Lewis E. Carr, for app'lt; Wm. H. Crane, for resp’t.
   Dykman, J.

This action was for the recovery of the value of water furnished by the plaintiff to the defendant for sprinkling the streets of the village, the public fountains, water troughs, jail and hose house, from the first of May, 1886, to the first of May, 1889.

The case was tried before a judge without a jury, and he rendered a judgment in favor of the plaintiff for the full amount of the claim. The defendant has appealed from the judgment. The facts are practically undisputed, and the defense to the action proceeds upon the absence of an agreement, or the want of power to incur the liability, the finality of the action of the auditing board rejecting the claim and the want of funds.

There is no destitution of power in the municipal authority of this defendant to make contracts for a supply of water for public use in the village, and no limitation of such power inside of the public necessities. There was no contract for the water out of which this claim arises, yet it was furnished and the law will justify an implication of a contract for the payment of its value.

Municipal corporations may be bound upon contracts implied from sufficient facts. “The doctrine of an implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice without respect to the same.” Nelson v. Mayor, 63 N. Y., 535.

“That corporations maybe bound-upon implied contracts made by its agents and to be deduced from corporate acts, without a vote of the governing body, is now well settled.” Kramrath v. Albany, 127 N. Y., 581; 40 St. Rep., 241.

To the same effect is Dillon on Municipal Corporations, § 383.

The claim of the plaintiff was before the governing body, the defendant, and it was just.

There was sufficient authority in the charter to enable the officers to pay the amount, but they refused to do so, and neglected to put the proper machinery in operation to raise the funds to pay the claim, and under such circumstances the law furnishes the creditor with a remedy by action.

Judgment should be affirmed, with costs.

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


text:
    Jacob Jamer, App’lt, v. Emma E. Jacobs et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Partnership—Accounting—Apparent loss op assets.
    At the outset of a business the representative of defendants in the firm kept the books, but as the business grew he ceased to do so, and the books were kept by subordinates subject to the orders of all the partners. Held,
      that it could not he claimed that defendants were responsible for an apparent loss of assets, due to faulty bookkeeping.
    2. Same.
    A failure to keep a “ suspense account ” for thirteen years, though it might well end in an apparent deficiency of assets, does not indicate any wrongful disposition of the firm property.
    Appeal from judgment in favor of defendants, entered upon the report of a referee, in an action for an accounting of the affairs of a partnership upon a voluntary dissolution.
    A. J. Perry, for app’lt; Stephen B. Jacobs, for resp’ts.
   Pratt, J.

The action is brought to settle the accounts of a co-partnership, and also seeks to charge upon defendants an apparent deficiency of assets.

The referee declined to hold either partner responsible for such deficiency, which he found to be rather apparent than real, and due to a faulty system of bookkeeping, and decided that the plaintiff, who was the liquidating partner, was indebted to the defendants upon a settlement of the accounts.

We have examined the grounds of both these results, and find them sustained by the evidence.

The appellant claims' that defendants were especially charged with the duty of keeping the books, and should be held responsible if any assets are missing.

We do not find them to have assumed such responsibility.

Prom 1872 to 1874, at the outset of the business, it seems that defendants’ representative in the firm did in fact keep the books; but, as the business grew his attention was given to more active duties, and the accounts were kept by various subordinates, at least four having been thus employed, subject to the orders of all the partners. Nor is it clear that had defendants kept the books they would be held to make good any apparent loss. We also find that the evidence sustains the finding that the books were so kept as truthfully to represent the transactions.

The failure to keep a “ suspense account ” during thirteen (13) years, though it might well at the end of that time result in apparent deficiency of assets, did not indicate any wrongful disposition of the firm property, which the referee correctly held was not established.

The proof sustains the report as to the balance found owing by the plaintiff. There was no dispute that the property was divided at the dissolution, $18,854.21 to plaintiff, and $14,793.30 to defendants, by which plaintiff became chargeable with $2,030.45.

Nor is there any question that plaintiff as liquidating partner received $45,817.32 cash assets.

He is given credit for $22,825, paid out in settlement of the firm affairs, leaving him chargeable with $22,992.30, of which one-half belonged to defendants. He is credited with paying $9,157.95 of this amount to defendants. It is not suggested that he made any further payments, and the balance found against him is justified.

For a large amount of the payments credited to plaintiff no vouchers were produced, and it is not easy to see how he was entitled to be allowed for the payments.

The referee was equally indulgent to plaintiff in respect to interest The affairs were liquidated, and defendants should have been paid their shares in July, 1886, yet interest was only allowed from January, 1887.

There are no exceptions to evidence which have injured plaintiff, and the judgment is affirmed, with costs.

Barnard, P. J., and Dxkhan, J., concur.


text:
    Thomas F. Oakes, Appl’t, v. Edward F. De Lancey, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Deed—Descbiption.
    The description of certain land in a colonial patent included all “woods, beaches, marshes, pastures, etc.,” which was extended by a crown grant so as to include bays and harbors, and included the shore. The deed to defendant described it as “along the shore.” Held, that the word “shore” included lands washed by the sea between high and low water mark.
    Appeal from judgment in favor of defendant, entered on the findings and decision of the court at special term.
    Action to recover damages for breach of contract in the sale of lands by defendant to plaintiff, in that defendant did not have and did not convey by his deed a good and sufficient title to a portion of the premises described in said deed,' and for which plaintiff had paid.

      Artemas H. Holmes, for app’lt; Martin J. Keogh, for resp’t.
   Barnard, P. J.

On the 4th of June, 1890, the defendant conveyed to the plaintiff a piece of land said to contain about twenty-two and a half acres. The land was situated on Long Island Sound, and nearly four acres of the parcel was between high and low water mark. The land was sold by the acre at public auction and was sold at a large price by the acre. The plaintiff objected to the land under water being included in the deed, on the ground that the description did not include it This claim was made the basis of an action, and it was decided that the land under water was included in the description. Oakes v. DeLancey 133 N. Y., 227; 44 St. Rep., 686.

This action is based upon the allegation that the defendant has no title to the lands between high and low water mark. The evidence shows that the premises are part of what is known as the East or Mamaroneclc Heck. This with two other necks of land adjoining was conveyed to John Hichbell in 1662, by the Holland provincial government, and by the English Colonial in 1688. The English patent includes all “ woods, beaches, marches, pastures, creeks, waters, lakes, fishing, hunting and fowling.”

This description is carried into the Manor of Searsdale by a grant of the English Sovereign in 1701 to Caleb Heathcoate, who had bought the land, and the description is in this grant widened so as to include bays and harbors as well as beaches, and included the shore. This title is unbroken down to the conveyance to the defendant in 1871. It is true that the deed to the defendant does not in terms convey the land under water or even use the words of the Colonial grants, but it is admitted by both parties, and is proven by the evidence, to be the same premises as are described in the patents. The plaintiff’s claim is mainly, if not entirely, based upon the description of the deeds from the immediate grantor to the defendant, one Shepherd. This description is “along the shore.” If the word “shore” in the patents included the strip between high and low water mark, the description in the defendant’s deed will go to low water mark to fill the requirements of a deed which reserved nothing. The court of appeals has decided that the word slrore includes lands washed by the sea and between high and low water mark. Trustees of East Hampton v. Kirk, 68 N. Y., 459.

A shore must always have a definite limit on the seaboard.

The judgment should be affirmed, with costs.

Pratt, J., concuz-s; Dykman, J., not sitting.


text:
    Thomas Curry, Resp’t, v. Patrick J. Gleason, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Verdict—Conflicting evidence.
    Where there are no questions of law, and the testimony was contradictory, the verdict of the jury will not be disturbed.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      S. B. & D. Noble, for app’lt; William E. Stewart, for resp’t.
   Dykman, J.

This action was brought to recover the sum of $1.058.82 loaned to the defendant by the plaintiff between the 1st day of Januaz-y, 1887, and the 6tlz day of January, 1890.

The defense set up in the answer was a general denial.

The cause was tried at the circuit before a juz-y, where the plaintiff testified to his claim in detail, and the defendant as a witness in his own behalf denied that he ever borrowed any money from the plaintiff and denied the claim absolutely.

The cause was submitted to the jury upon that contradictory testimony, and the jury found a verdict in favor of the plaintiff for the full amount of his claim.

The defendant has appealed from the judgment and from the order denying the motion for a new trial on the minutes of the GOUI't.

Under well settled rules of law it is obvious we cannot interfere with the judgment. There are no questions of law involved and the testimony was contradictory, and thus presented a case peculiarly within the pz-ovince of the jury. The testimony of the plaintiff was amply sufficient to justify the verdict and the jury must have found it true.

The judgment and order appealed from should be affirmed, with costs.

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


text:
    The Charles S. Higgins Co., App’lt, v. The Higgins Soap Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Trademark—Use of similar name.
    Charles S. Higgins and another sold to the plaintiff the property used by them in the manufacture of soap, together with the good will of the business and trademarks, the bill of sale providing that so long as Higgins-was employed at a specified salary, he would not make or sell soap in Brooklyn except for plaintiff. The employment having ceased, he, with others, formed the defendant corporation and opened a place of business-in Brooklyn. Plaintiff’s soap is sold under the name of “ Chas. S. Higgins’ German Laundry Soap,” while defendant’s is marked “ Higgins Soap-Co., Original Laundry Soap, Chas. S. Higgins, Prest.” and the labels are of different colors. Held, that these facts made out no case for an. injunction.
    Appeal from judgment dismissing the complaint on the merits.
    Action to restrain defendant from manufacturing or selling soap or like products within the state of New York under the name of Higgins Soap Co.

      H. Aplington, for app’lt; Jesse Johnson, for resp’t.
   Dykman, J.

William B. Higgins started a business of manufacturing soap in 1846. Charles S. Higgins, his son, became subsequently a partner with his father in the business. After the death of the elder Higgins the business was acquired by Charles S. Higgins and John J. Morgan. They continued such owners-until December, 1891, when the plaintiff was organized as a domestic corporation for the manufacturing and selling soap. The proprietors, Higgins and Morgan, then assigned the property used in the manufacture of soap by them, real and personal, with the good will of the business, with the trade-marks and all names and devices employed in distinguishing the manufactured product and the right to all secret processes used by the grantors, during the life of Charles S. Higgins. The paper provided that as long as-Higgins was allowed a salary of $15,000 a year, he would instruct persons acting for the company in the firm methods of manufacture. The paper further provided that so long as Higgins was employed at this salary, he would not make or sell soap in the city of Brooklyn except for the plaintiff, company. Higgins ceased to be employed in 1891, and he, with his wife and son, and two other persons, procured the incorporation of the defendant in the state of New Jersey. The defendant opened a place of sale in Brooklyn. The old private firm had 'manufactured soap sold under different names, but the principal article was known as “ Chas. S. Higgins’ Herman Laundry Soap.” The defendant marks its soap on the label “ Higgins Soap Co., Original Laundry Soap, Chas. S. Higgins, Prest.; ” and on one side of the bar of soap, inclosed within the labels, “ Higgins Soap Co., Chas. S. Higgins, Prest..” and on the other side of the bar, “ Original Laundry.”' The soap of the private; firm and of the plaintiff was well known in the market as “HigginsSoap,” and the plaintiff more or less known as the “Higgins Soap Company.” The basis of this action is such as is involved in trade-mark cases. The use of the name of Higgins by the family of Charles S. Higgins, in connection with himself and others, of itself gives no right of action. Meneely v. Meneely, 62 N. Y., 427.

The evidence is to the right to relief for the use of a trade-mark and to prevent fraud and imposition. The name of Higgins was in the corporate description of both companies, and both companies do business in Brooklyn city. Bach company manufactures soap and each calls its product Higgins soap. There was no covenant by Charles S. Higgins that he would not carry on a soap business in Brooklyn except upon the condition of his employment by the plaintiff, and his right to so carry on the soap making business was necessarily implied in the bill of sale. Charles S. Higgins has very little interest in the defendant corporation, one-twelfth only. The labels on the manufactured articles are entirely different. One is bright yellow and the other is blue. The distinctive word “ German,” which the plaintiff has the right to use as indicating its product, is absent from the defendant’s label. The plaintiff’s label has a German, recommendation for a soap which will not destroy the fabric washed. The defendant’s has a recommendation in four different languages that the defendant’s soap is made of the very best materials and without adulteration, and will not injure the fabric. The place of manufacture of defendant’s soap is printed plainly on the labels used. The plaintiff’s label contains no place of manufacture. Apart from the use of the word Higgins, in the corporate name and' stamped on the manufactured product, there would be no cause of complaint either that the business of the parties was liable to confusion among purchasers or that it was carried on to deceive the public. No case was made out for an injunction under this proof. Munro v. Tousey, 129 N. Y., 38 ; 41 St. Rep., 127.

The judgment should, therefore, be affirmed, with costs.

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


text:
    Philip Golberg, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Railroad.
    Plaintiff, a passenger on one of defendant’s trains, alighted from the train on the side opposite the depot, and was struck hy a train going in the opposite direction, which was under full control, with its hell ringing, and running at a rate not exceeding three miles an hour. When plaintiff alighted the track was obscured by steam from the engine. There was some evidence that the train from which plaintiff alighted was standing when he was struck, but this was contradicted. Feld, that negligence on the part of defendant and freedom from negligence on plaintiff’s part, | were not shown, and that he was not entitled to recover.
    Appeal from judgment entered on dismissal of the complaint, and from order denying motion for a new trial.
    Action tq recover damages for injuries sustained by plaintiff, who was a passenger in one of defendant’s north bound trains. He alighted at Hastings, on the side opposite the depot, while the track was enveloped in steam and smoke from the engine, and was struck by the engine of a south bound train which was slowly coming into the station, with the bell ringing, at a rate of speed not exceeding three miles an hour. The first trial resulted in a judgment in favor of plaintiff, which was reversed by the court of appeals. On the second trial two witnesses testified that plaintiff’s train was at asstandstill when he was struck; while two other witnesses testified it was either moving or just starting.

      William Riley, for app’lt; Frank Loomis (D. W. Tears, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff was a passenger on the defendant's road from Yonkers to Hastings. When he arrived at Hastings he got off the cars on the west side, and as he proceeded towards the river he was struck by a train going south. The station at Hastings is east of the track. The general facts surrounding the accident are not materially changed upon this trial from those presented upon the former appeal. The court of appeals decided therein that no negligence was proven, and that the proof of freedom from contributory negligence upon the part of plaintiff was not sufficient. Goldberg v. N.Y. C. & H. R. R. R. Co., 133 N. Y., 561; 44 St. Rep., 71.

The judgment and order denying a new trial should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Dykman, J. Barnard, P. J. (dissenting.)

text:
    Richard Cronin et al., Resp’ts, v. William M. Tebo, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Contract—Breach—Counterclaim.
    Defendant made an offer in writing to plaintiffs, who were contractors engaged in erecting crib work for a bulkhead, to dredge a trench for crib bottom of specified dimensions for a certain sum, “the material so dredged to be deposited in shore so as not to interfere with said trench.” This offer was accepted varbaily, and defendant commenced work; but was prevented by the shore inspector from depositing the material in shore, and was compelled to carry it to sea. After doing so for several days he abandoned the work. In an action for breach of the contract he set up a counterclaim for the value of the work already performed. Reid, that there was no obligation on the part of plaintiffs to furnish that place for deposit, and defendant was not justified in abandoning the work, and as the contract was entire, with no provision for payment until the work was completed, defendant was entitled to no compensation for what he did, and a judgment for plaintiffs was proper.
    (Barnard, P. J., dissents.)
    Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court, and from order denying a motion for a new trial on the minutes.

      J. T. Marean, for app’lt; James C. Church, for resp’ts.
   Dykman, J.

The plaintiff in this action made a contract with Maltby Gr. Lane to build certain bulkheads at Fort Hamilton, the construction of which required an excavation in the ground under water for their reception.

The defendant is engaged in the business of dredging, and as the result of a conversation between one of the plaintiffs and the agent of the defendant, he made a written offer to the plaintiffs of which the following is a copy:

“Brooklyn, June 13, 1887.
“ I, the undersigned, propose and offer to excavate and dredge a trench seven hundred and seventy-five feet in length, for crib bottom, of thirty feet wide, to the depth of twenty feet at mean low water, for the sum of twenty-three hundred dollars, the material so dredged to be deposited in shore so as not to interfere with said trench.
“Respectfully yours,
“W. M. Tebo,
“To R. Cronin & Sons.” “Bentley.”

The proposition was accepted verbally, and the defendant was directed to proceed with the work, which he did in a few days thereafter. He was prevented by the shore inspector from dumping the material in shore, and carried the same to sea until about the seventh day of July, when he ceased to work, and did no more dredging thereafter.

This action is for the recovery of damages sustained by the plaintiff in consequence of the failure of the defendant to complete his contract, and for services in driving some piles.

There seems to have been no dispute respecting the claim of the plaintiffs, but the defendant set up a counterclaim of $1,444.51 for the work he actually did under the contract.

The counterclaim is based upon the theory that the contract secured to the defendant the right to dump the excavated material in shore. That it was the duty of the plaintiffs to furnish that place of deposit under the contract, and as they failed to perform that portion of the contract on their part, the defendant was justified in the abandonment of the work, and entitled to compensation for what he had done under the contract

The trial judge decided against the defendant and directed a verdict in favor of the plaintiffs for $589.39.

The defendant has appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial upon the minutes of the court.

It is true that the last clause of the defendant’s offer states that the material dredged was to be deposited in shore, and both parties intended and expected to have it so placed.

Under all the circumstances, however, it cannot be assumed that the plaintiffs undertook to furnish the place designated as a dumping ground. The contract was formed by the acceptance of the defendant’s offer. The plaintiffs made no stipulation, and in respect to the ground designated in the offer they could make none. They had no control over the place, and could grant no privilege in respect thereto.

Thek acceptance of the defendant’s offer constituted an assent to the propositions contained therein, but they made no stipulation on their part.

In the absence of an express undertaking the law in its interpretation of the transaction implies an obligation on the part of the defendant to perform the services according to his proposition for the price named, and against the plaintiffs it implies a duty to allow the defendant to do the work and pay him the price stipulated therefor.

Such were the legal obligations of the parties. The contract was entire, with no provision for payment until the work was completed, and as the defendant abandoned the contract and failed to perform it, he is entitled to no compensation for what he did.

In respect to the new arrangement between the parties upon which the defendant now insists, it is sufficient to say that it was not pleaded and has no consideration for its support.

Our view is justified by all the facts and circumstances surrounding the transaction. The defendant knew the plaintiffs were contractors to lay down the crib work for certain fillings. They had no control of the premises and no more power to obtain permission to leave the material in shore than the defendant

He did not require them to furnish a place for the deposition of the excavated material, or to obtain permission to lay it down in shore. He merely said that it was to be so laid down and they assented, and so they were bound to make no interference in that respect.

Our conclusion is that the proper disposition was made of the case, and the judgment and order should be affirmed, with costs.

Pratt, J., concurs.

Barnard, P. J. (dissenting.)

The plaintiffs’ claim was not disputed. The only question presented is as to the defendant’s counterclaim. One Lane owned water front property at Port Hamilton. The plaintiffs are dock builders. The defendant is a dredger. The work which plaintiffs undertook to do for Lane was to build a bulkhead around the property. There was an existing bulkhead on the north side of the property which had to be extended some eighty feet, and then to be continued south 775 feet parallel to the shore and then to the shore. The defendant was to dredge for the plaintiffs the 775 feet for crib bottom, thirty feet wide and twenty feet deep at mean low water. The dumping was to be inshore so as not to interfere with the trench. When defendant commenced his work and proceeded to dump inshore, he was stopped by the shore inspector. The objection he made was that the dumping could not take place inshore until the pile work was put in for this eighty feet extension. That would have protected the trench under the contract and would have met the objection of the shore inspector. The plaintiffs promised to put down this eighty feet crib in extension of the old bulkhead in a few days, which they failed to do. The defendant continued to dredge and carry the material and dump it at sea, at large increased expense to him, until the' plaintiffs finally refused to put it inr when the defendant left the work. Assuming all disputed facts in favor of the defendant, the case is one where the plaintiffs broke the contract as amended after the shore inspector objected to the inshore dumping. The inspector assumed that the extension of the old bulkhead would protect the material dumped from being washed away by the tide, and the plaintiffs agreed to give place for inshore dumping by the completion of this dock extension. They did not do so, and the defendant quit the work on that account.

The judgment should be reversed and a new trial granted, costs to abide event.

Judgment and order affirmed, with costs.


text:
    John Raven, Resp’t, v. William R. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Mechanic’s lien—Grading building lots within the statute.
    The grading of building lots is within the provisions of the first section of the mechanic’s lien law of 1885, and a lien can be acquired for such work.
    2. Same—County court has jurisdiction of action to foreclose.
    The county court of the county in which the property is situated has jurisdiction of an action to foreclose a mechanic’s lien, although the defendant is not a resident of that county.
    3. Same—Bar—Pendency of former action.
    The pendency of an action between the same parties for breach of the contract under which the work was done, and for the work for which the lien was filed, is not an obstacle to the maintenance of an action to foreclose the lien.
    Appeal from judgment of the county court of Westchester county in favor of plaintiff, in an action to foreclose a mechanic’s lien.
    The lien was filed February 29, 1892. After the filing of the lien an action was brought in the supreme court for damages for the breach of contract under which the labor was done for which the lien herein was filed, and for the services rendered for which the lien was filed. The summons and complaint in that action were served on defendant June 9,1892. On July 20,1892, plaintiff was served with a notice signed by defendant requiring-him to commence, an action to foreclose the said lien, or show cause at a special term of the supreme court, to be held at the court house in Brooklyn on the 26th day of August, 1892, at ten o’clock, why the said notice of lien should not be canceled. Thereupon this action was brought.
    On the trial of the action three questions were litigated, as follows:
    First. That the county court has not jurisdiction of the action, in that the defendant is a resident of New York city and not of Westchester county.
    Second. That there was another action pending at the same time between the same parties for the same cause.

      Third. That because of the character of the work done the plaintiff can have no lien.

      James R. Bowen, for app't; Frederick W. Clark, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment of the county court of W estchester county in favor of the plaintiff against the defendant in an action to foreclose a lien in favor of the plaintiff for grading building lots.

The action is prosecuted under chapter 342 of the Laws of 1885, and the first section of that act provides for a lien .to any person who shall perform labor or service in altering or repairing any “building or building lot.”

The claim of the plaintiff falls directly under this provision, and the contention of the defendant that no lien could be acquired is destroyed by the statute.

It is also contended that the county court had no jurisdiction over the action, but the seventh section of the act provides that the claimant may enforce his claim against the property mentioned in the lien, and against the person liable for the debt, by a civil action in a court of record in the city or county where the property is situated which would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien.

This provision includes this case, and the objection is baseless.

The other suit pending between these parties is not for the same relief as this, and presents no obstacle to the maintenance of the present action. The judgment should be affirmed, with costs.

Barkard, P. J., and Pratt, J., concur.


text:
    The People ex rel. Winfield S. Overton, Resp’t, v. The Board of Trustees of the Village of Whitestone, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Villages—Vacancies in board of trustees—Mandamus.
    The provision of a village charter that there shall be a certain number of trustees is mandatory, and it is not discretionary with the board, as members of it drop out, whether they shall call a special election to fill the vacancy ; but they may be compelled to do so by mandamus on the application of any citizen of the village.
    Appeal from a writ of peremptory mandamus to compel the trustees of the village of Whitestone to call a special meeting to elect a trustee to fill a vacancy caused by the resignation of one of their members.

      B. W. Downing, for app’lt; Alfred Mitchell, for resp’t.
   Pratt, J.

This is a special proceeding against village trustees to compel them by mandamus to call a special election to fill a vacancy.

The relator is a voter and tax-payer of the village of White-stone, Queens county, and the defendant is the acting governing body of said village, and consists of a board of seven trustees who were in office on and prior to January 18, 1893, when one -of them, August M. Graue, then resigned his said office, and the vacancy thereby created existed when this proceeding began.

This proceeding was commenced by the granting, on the ex parte application of relator’s counsel upon the affidavits of himself and the relator, on April 18, 1893, of an order requiring defendant to show cause why a peremptory mandamus should not issue commanding it to forthwith call a special election to fill said vacancy. Defendant appeared by counsel, and opposed said motion, admitting the foregoing facts, hut contending that the power given was discretionary, and that they wished to save the expense of election.

It is well settled in this state that every citizen has a right to compel the performance by public officers of the duty imposed on them of executing the law. People ex rel. Boltzer v. Daley, 37 Hun, 461, and cases there cited.

There being no disputed facts, a pure question of law was raised making it the duty of the judge below either to deny the application or grant a peremptory mandamus.

The question is whether the law which provides that there shall be seven trustees of the village is permissive or mandatory. Season and authority seem to indicate very strongly that it is mandatory. If it is discretionary, as members of the board of trustees drop out, whether to call an election or not, they might thus be reduced to one man and the representative character of the government destroyed. The power is conferred to call a special election in such a case and we think it is mandatory.

Where a public body is clothed by statute with power to do an act which the public interests require to be done, the execution of the power may be insisted on as a duty though the statute conferring the power appears to be only permissive in terms. Hutson et al v. Mayor of New York, 9 N. Y., 163, following 3 Hill, 612 ; People ex rel Raymond v. Connolly, 4 Abb., N. S., 376; People v. Supervisors, 51 N. Y., 401.

Order affirmed, with costs and disbursements.

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