author: Merwin, J.

text:
    Wilson H. Gardenier, Pl’ff by substitution, v. Hiram Eldred, Def't.

      (Supreme Court, General Term, Fourth Department,

      Filed October 3, 1891.)

    1. Appeal—Stay—Non-payment oe costs.
    A motion, to set aside a judgment dismissing the complaint was denied, with costs to defendant. About two years later the plaintiff herein was substituted and appealed from the judgment. Held, that as the costs had not been paid the proceedings of the plaintiff were stayed, and that he had no right to serve the notice of appeal.
    3. Same.
    The notice of appeal and proposed case and exceptions were returned by defendant’s attorney on the ground that plaintiff was under a stay by reason of non-payment of costs, and he obtained an order vacating service of the case and exceptions on that ground. Held, that the appeal from such order would not be dismissed.
    Motion by defendant to vacate and set aside the service of the notice of appeal from the judgment in this case and dismiss the appeal; also to vacate and set aside the service of the notice of appeal from the order entered June 4, 1891, and to dismiss the appeal, upon the ground that at the time of the service of such notices of appeal all proceedings on the part of plaintiff were stayed by the non-payment of motion costs awarded to defendant by an order made August 81, 1889.

      D. P. Morehouse, for deft; W. H. Gardenier, for pl’ff.
   Merwin, J.

This action was commenced in February, 1889, in the name of Jjovinia Downs as plaintiff by Mr. Gardenier, the present plaintiff, as her attorney. Issue was joined in the action and a trial was had, and on the 31st July, 1889, a judgment was entered dismissing the complaint, with caste. Thereafter at special term the plaintiff in the action made a motion to set aside the taxation of costs and the judgment. This motion was denied, with ten dollars costs to the defendant and an order to that effect, dated August 31,1889, was duly entered September 3, 1889, and on the same day. duly served on the plaintiff’s attorney. Prior to the 14th February, 1891, Mr. Gardenier, the attorney, became the owner of the cause of action and at the date named he obtained at special term an order substituting him as plaintiff in the action. This order was duly entered and served on defendant’s attorney.

On the 13th May, 1891, Gardenier, as plaintiff by substitution, served on defendant’s attorney a notice of appeal from the judgment, and on the 14th May, 1891, a proposed case and exceptions. Both of these were returned by the defendant’s attorney to the plaintiff on the ground that the plaintiff was under a stay by reason of the non-payment of the costs ¿warded by the order of August 31, 1889.

On the 2d June, 1891, the defendant moved at special term for an order vacating the service of the case and exceptions on the ground stated. This motion was granted/ the order being entered June 4, 1891, and on the 9tli July the plaintiff appealed from this order to the general term. The costs awarded by the order of August 31, 1889, have,never been paid. It appears that the time to appeal from the judgment has not been limited as provided by § 1341 of the Code.

The plaintiff was in no better position as to the stay than his assignor. Mac Whinnie v. Cameron, 11 N. Y. Supp., 20; 32 N. Y. State Rep., 985. In that case, judgment had been rendered against the defendant and supplementary proceedings instituted, but no property discovered. On the death of the judgment cred-tor supplementary proceedings were again instituted and dismissed, with costs to the defendant. The executrix then assigned the judgment, and the assignee issued execution against certain real estate of defendant. It was held that § 779 of the Code applied, and that the assignee was compelled to pay the costs awarded to defendant as a condition precedent to issuing the subsequent execution. In Murray v. Cameron, 15 N. Y. Supp., 13; 38 N. Y. State Rep., 792, which was an action upon the same judgment by a subsequent assignee, the same rule was applied and the stay held to be effectual against the action brought by the second assignee.

The provision of § 779 is that “ all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof.”

We think that the plaintiff when he served the notice of appeal from the j udgment was bound by the stay and had no right to serve the notice. For that reason the service should be set aside and the appeal dismissed.

The order appealed from enforced the same rule as to the service of the case and exceptions. The propriety of such enforcement is involved in the appeal from the order. In such appeal the act of the defendant, since the stay order was made, is sought to be reviewed. We think the plaintiff should have opportunity to defend himself against such act.

Motion to vacate the service of the notice of the appeal from the judgment and dismiss such appeal granted.

Motion to vacate the service of the notice of appeal from the order and dismiss such appeal denied.

Hardin, P. J and Williams, J., concur.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    Franz O. Matthiessen et al., Ex’rs, Resp’ts v. John W. Kohlsat, App’lt.

      (New York Superior Court, General Term,

      Filed October 10, 1891.)

    Usury—When defense of not available.
    Where the only defense pleaded is a general denial, and usury does not conclusively appear as matter of law from the evidence adduced by the plaintiff, the defense of usury is not available to defendant.
    Appeal by defendant from a judgment entered upon a verdict directed by the court in favor of the plaintiffs.

      Burnett & Whitney, for app’lt; Martin & Smith, for resp’ts.
   Per Curiam

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made ¡.hat there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loans, an 1 a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint, and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defense pleaded was a general denial, and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiff. Under the circumstances stated, the defense of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31; 88 N. Y. State Rep., 910, and cases there cited.

The record discloses no error, and the judgment must, therefore,, be affirmed, with costs.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Mary Murphy, Resp’t, v. The Suburban Rapid Transit Co., App’lt

      (New York Superior Court, General Term,

      Filed October 10,1891.)

    Huisance—Defective condition of approach to bridge.
    Plaintiff was injured by reason of her catching her toe against the end of a plank in the platform approach to defendant’s bridge, which had become loose so that it projected beyond the other planks, rendering a part of the street unsafe for travel. Held, that this constituted a nuisance, and that defendant was liable for the injuries caused thereby in the absence of contributory negligence.
    Appeal from a judgment against defendant in favor of plaintiff, entered upon a verdict of a jury, for- $5,000 damages for injuries sustained by the plaintiff by reason of the defective condition of a platform approach to the stairway leading to the footway of the bridge erected by the defendant over the Harlem river, and from an order denying motion for a new trial.

      Thomas P. Wickes, for resp’t; James R. Marvin, for app’lt.
   Gildersleeve, J.

We are satisfied, from a careful examination of the evidence in this case, that in constructing the bridge and its footways over the Harlem river, the defendant, at the point where the plaintiff received her injury, interfered with a part of the public highway, without authority or warrant of law therefor. The platform approach to the stairway leading to the footway of the bridge must be regarded as an appendage to and practically a part of the bridge. The defendant undertook to construct and maintain a bridge over .the river, “ open for the free use of all persons desiring to pass and repass over the same on foot.” . The structure, without suitable approaches, would be useless to foot passengers, and could not be said to be a bridge. The approaches are as necessary as the structure itself. S. & R. Neg., 3d ed., § 253; Hayes v. The New York Central, etc., R. R. Co., 9 Hun, 63; Carpenter v. The City of Cohoes, 81 N. Y., 24; The Commonwealth v. Deerfield, 6 Allen, 455.

By the terms of defendant’s contract defendant was bound to keep “ the bridge and its footways and approaches and stairways and roofs in complete order.” Also both principle and authority imposed upon the defendant the obligation of keeping the same in repair. Hayes v. The New York Central, etc., R. R. Co., 9 Hun, 63, and cases above cited.

One of the planks in said platform approach in some manner became loose, so that the end projected along the other planks of the platform, and the accident was caused by the plaintiff catching ber toe against the end of this plank. This defective condition of the platform approach rendered a part of the public street unsafe for the ordinary purposes of travel, and constituted a nuisance. Wood on Nuisance, §§20. 319 and 324; Thompson on Highways, 274; Shearman & Redfield on Negligence, § 332; Ahern v. Steele, 115 N. Y., 203; 26 N. Y. State Rep., 295.

The evidence under the law as we understand it, and as set forth in the authorities above quoted, placed the responsibility for the repair and maintenance of the platform approach in a safe condition upon the defendant. There was no evidence tending to make any other person or organization than the defendant responsible for the condition of the plank at the time the plaintiff fell. This was the instruction of the learned trial judge to the jury, and we find it to be correct.

The defendant owed to the public the duty of keeping the highway, with which it had interfered, in as good a condition and as safe as it was before the interference. This obligation it did not keep. Any special damage arising from its failure in this respect furnishes ground for a private action, without regard to the question of negligence on the part of the defendant Dygert v. Schench, 23 Wend., 446; Congreve v. Smith, 18 N. Y., 79; Clifford v. Dam, 81 id., 56; Mairs v. Man. R. E. Assn., 89 id., 498; Wolf v. Kilpatrick, 101 id., 146; Cohen v. The Mayor, 113 id., 538; 23 N.Y. State Rep., 509.

Eor these reasons the defendant was liable for the injury sustained by the plaintiff, unless her own negligence contributed thereto. The question of contributory negligence on the part of the plaintiff was correctly left to the jury, and their conclusion in her favor on this point was fully justified by the evidence.

An examination of the exceptions fails to disclose any rulings prejudicial to the substantial rights of the defendant.

The injury sustained by the plaintiff was serious; it caused her great suffering and will give her pain and trouble all her life.. We do not think the damages awarded by the jury excessive.

The judgment and order appealed from are affirmed, with costs.

Freedman and Dugro, JJ., concur.


author: Freedman, J.

text:
    Henry C. Alger, Adm’r, App’lt, v. The New York Elevated R. R. Co. et al., Resp’ts.

      (New York Superior Court, General Term,,

      Filed October 10, 1891.)

    Trial—Dismissal of complaint.
    Where from the facts disclosed in reference to damages sustained different men of reasonable minds might reach different conclusions, it is for the jury to determine the facts, and it is error to dismiss the complaint.
    Appeal by the plaintiff from a judgment in favor of defendants dismissing plaintiff’s complaint, with costs, and also from an oi’der denying plaintiff’s motion for a new trial.

      A. Edward Woodruff, for app’lt; Edward C. James, for resp’ts.
   Freedman, J.

The action was brought by the plaintiff as administrator of Daniel B.' Alger, deceased, to recover damagés caused by defendants’ elevated railroad to premises No. 37 Front street in the city of New York, owned by plaintiff’s intestate in his lifetime. The action was commenced May 14, 1889, and under the pleadings and the evidence given at the trial the plaintiff, upon proper proof of damage caused by the defendants, was entitled to recover damages from May 14, 1883, to the death of Daniel B. Alger, which occcurred June 7, 1887. Under the decisions of former cases the outstanding lease constituted no bar. Consequently, the only question requiring serious attention is whether the plaintiff gave sufficient evidence of damage during the period stated. The trial judge must have been of the opinion that the plaintiff had not done so, for he dismissed the complaint upon plaintiff’s own showing and without requiring the defendants to go into a defense. Upon a careful examination of the whole case, I am of the opinion that the plaintiff showed sufficient to entitle himself to go to the jury. A good deal depended upon the drawing of the proper inferences. But inasmuch as from the facts disclosed different men of reasonable minds might have reached different conclusions, it was for the jury to determine the facts. In Jones v. Metropolitan El. R. Co., 14 N. Y. Supp., 632; 39 N. Y. State Rep., 177, the case was submitted to the jury under an unexceptionable charge, and the jury found a verdict for the plaintiff for only six cents damages. The general term, on plaintiff’s appeal, ordered a new trial on the sole ground that the damages thus awarded for a period of four years were insufficient, and that the hardness of the task to determine the damages was no excuse for the neglect of the jury to thoroughly perform its duty. That case in some of its essential features relating to the damages was very much like the case at bar. The conclusion cannot, therefore, be avoided that the dismissal of the complaint constituted error.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dug-ro, J., concurs.


text:
    Fannie J. Duff, Pl’ff, v. The Mayor, etc., of New York, Def’t.

      (New York Superior Court, General Term,,

      Filed October 10, 1891.)

    Municipal corporations—Action For personal injuries—Notice.
    Chapter 572, Laws 1886, does not require a notice of intention to commence a suit for personal injuries against the city, other than such as is conveyed by service of summons and complaint, to be filed in cases where the action is brought within six months of the time when the cause of action accrued.
    Exceptions ordered to be heard in the first instance at general term, which are based upon the motion to dismiss the complaint upon the ground that the plaintiff had failed to file with the counsel to the corporation a notice of her intention to commence the action within six months after the accident, in compliance with the requirements of chap. 572 of the Laws of 1886.

      Douglas A. Levien, Jr., for pl’ff; William H. Clarke, for def’t.
   Per Curiam

We are disposed to apply the reasoning in Meyer v. The Mayor et al., 14 Daly, 395; 12 N. Y. State Rep., 674, and Denair v. The City of Brooklyn, 5 N. Y. Supp., 835 ; 25 N. Y. State Rep., 1014, to the facts of this case.

The intent of the legislature must be sought, and governs. The act of 1886 and surrounding circumstances cause the opinion that it was not the legislative intent that a notice of intention, other than such as is conveyed by the service of a summons and complaint, should be required to be filed in cases where the action is brought within six months of the time when the cause of action accrued. Reining et al. v. The City of Buffalo, 102 N. Y., 308; 2 N. Y. State Rep., 10, and Babcock v. The Mayor et al., 56 Hun, 196; 31 N. Y. State Rep., 110, are distinguishable from the present case. In the Babcock case, the action was commenced more than six months after the accident happened.

Plaintiff’s exceptions should be sustained, the order of dismissal vacated, and a new trial ordered, with costs to abide the event.

Freedman and Gildersleeve, JJ., concur.


text:
    George C. Akersloot, an Infant, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed October 10, 1891.)

    1. Negligence—Verdict.
    Where the questions of negligence and contributory negligence were fully and fairly submitted to the jury under a charge which carefully guarded the rights of defendant, and the jury were especially instructed to determine he case on their own recollection of the evidence and not on any allusion of the judge thereto, a verdict in favor of plaintiff will not be disturbed.
    2. Same—Damages.
    In a case where the plaintiff, an infant, was injured so that a loss of a leg was sustained, a verdict for $12,000 is not excessive.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Merrill & Rogers, for app’lt; Franklin Bartlett, for resp’t.
   Freedman, J.

Upon the facts disclosed at the trial the ques- ' tian of negligence on the part of the person having charge of the infant plaintiff at the time of the occurrence complained of, and the question of defendant’s negligence were questions for the jury, and they were fully and fairly submitted under a charge which carefully guarded every right which the defendant had. There was no error in the charge or the refusals to charge otherwise, and the jury were expressly instructed to determine the case upon their own recollection of the evidence and not upon any allusion of the trial judge as to his recollection of certain particulars. Uor can it -be held that under all the circumstances the verdict of $12,000 for the loss of plaintiff’s leg and the suffering connected with it is excessive in amount. Upon the whole case no substantial reason appears why the verdict of the jury should be disturbed.

The judgment and order should be affirmed, with costs.

Dugro and Gildersleeve, JJ., concur.


author: Van Wyck, J.

text:
    Ferdinand Blumenthal et al., Resp’ts, v. The Hudson River Boot & Shoe Mf’g. Co., App’lt.

      (City Court of New York, General Term,

      Filed October 15,1891.)

    Attachment—Corporations—Code Civ. Peo., § 3169.
    Section 3169 of the Code, which permits attachments to issue out of the city court of New York against “ a domestic corporation whose principal place of business is not within the city of New York,” construed as meaning whose principal place of business is not designated in its certificate of incorporation or by an amended certificate as in New York city.
    Appeal from order denying motion to vacate attachment against a domestic corporation whose principal place of business is not within the city of New York.

      Blumenstiel & Hirsch, for respt’s; Hastings & Gleason, for appl’t.
   Van Wyck, J.

The defendant moved to vacate an attachment granted on July 22, 1891, on the ground that it was a domestic corporation, and that it, “ at the time the said warrant of attachment was granted, and at all times thereafter, had its principal place of business within the city of New York,” and on affidavits'stating that its certificate of incorporation provided “ that the objects for which said company is formed are the manufacturing and selling of boots and shoes,” and “ that the names of the town and county in which the operations of said company are to be carried on are Poughkeepsie, county of Dutchess, state of New York; ” that such certificate was dated and acknowledged and filed in Dutchess county clerk’s office on December 28, 1885, and “ that said certificate of incorporation has been in no respect modified, amended or enlarged.”

The affidavits further show that by petition dated July 27, 1891, a majority of defendant’s trustees “ made application at a special term of the supreme court, held in and for the county of Dutchess,” for its voluntary dissolution, whereupon the receiver who makes this application to vacate was appointed by order of Judge Barnard, duly filed in Dutchess county clerk’s office. However these affidavits set forth that: “ Immediately after" the said defendant was organized as a corporation, it rented a store and office at premises No. 116 Duane street in the city of New York, as and for its principal place of business, and the said premises have continuously been occupied by the said defendant from 1885 until the present time, as its principal place of business,” and that “ during the said period the said company has manufactured boots and shoes at the city of Poughkeepsie, in the state of New York, where its factory is situated.” The principal business of this corporation would seem to have been the manufacturing of boots and shoes at Poughkeepsie and that the business of selling was merely incidental, and moreover the corporation treated Dutchess as “ the county in which the business of the company shall be carried on ” as required by the act, for it filed its certificates of incorporation there, and as required by § 2423 of the Code it presented the petition for its voluntary dissolution at a term of the supreme court “ held within the judicial district em“bracing the county wherein the principal office of the corporation is located.” The act of 1848 and amendments, under which this defendant was incorporated, provide that the certificate of incorporation shall be filed “in the office of the county in which the business of the company shall be carried on,” that the certificate of payment of the capital stock shall be recorded “ in the office of the county clerk of the county wherein the business of said company is carried on,” that the annual report shall be filed “in the office of the clerk of the county where the business of the company shall be carried on,” and that the written assent of stockholders to mortgage the company’s goods and chattels and franchise “ shall first be filed in the office of the- clerk of the county where the corporation has its principal place of business.” For all of these purposes it has been invariably held that the original designation in the certificate of incorporation (unless changed by filing amendments), of the county in which the operations of the company are to be carried on, is conclusive and controlling, .and that the certificate of incorporation, the certificate of payment of capital stock, the annual report, and the written assent of stockholders to mortgage must be filed in the office of the clerk of the county so designated as aforesaid in the certificate of incorporation.

It has, also, been held that the last certificate designating the place of the operation of the business of the company and filed in accordance with the provisions of the act is conclusive evidence of the legal residence of the corporation for the purpose of taxation. Western T. Co. v. Sheu, 19 N. Y., 408; Union Steamboat Co. v. City of Buffalo, 82 id., 351; Chesebrough Co. v. Coleman, 44 Hun, 545; 9 N. Y. State Rep., 360. And no authority has been cited or found which allows such a domestic corporation to establish its principal place of business other than by making and filing an original • or amended certificate of designation of the same as required by the statute, and it is well that it is so, as any other rule would certainly lead to confusion and inconvenience and would be illogical. The principal place of business referred to in ■§ 3169 of the Code means such place as is so designated by certificate made and filed as aforesaid, and the defendant’s principal place of business is not within the city of Hew York, but at Poughkeepsie by its own designation by certificate filed in Dutchess county clerk’s office.

The order denying motion to vacate the attachment must be .affirmed, with costs.

Ehrlich, Ch. J., concurs.


text:
    Herbert W. Grindal, Resp’t, v. George W. De Lano, App’lt.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    1. Trial—Notice of trial.
    The court cannot shorten the time of notice of trial, except as a condition of granting a favor.

      2. Same—When defeated.
    Notice of trial, although regular as to time, will be defeated if, during the time within which a party may amend as of course, he serves an. amended pleading which changes the issues.
    Appeal from so much of an order opening an inquest as imposes thirty dollars costs and directs that the judgment stand as-security as a condition of granting the same.

      J. E. Weld, for resp’t; F L. Eckerson, for app’lt
   Van Wyck, J.

The original answer was duly served on June 22, 1891, and on the next day an order was obtained advancing the cause to the short cause calendar for the 25th and requiring defendant to accept short notice of trial for that day. The notice of trial was served on defendant on the 23d, the day of obtaining the order, noticing the case for trial for the 25th, and on the 24th, the day after service of such notice, the same was returned by defendant who stated, as his reason for such return, that it was not served in accordance with the fifth subdivision of § 3161 of the Code, which provides that a notice of trial in this court shall not be for less than five days. The defendant served an amended answer, setting up a new and additional defense, on the morning of the 25th, before the opening of the trial term, and which he had an absolute right to do, as the service was within three days after the service of his original answer.

After the opening of the court on the 25th, the cause was. called'for trial, and the defendant allowed to take an inquest upon which the judgment was entered. The inquest and judgment were irregular, and should have been opened and vacated without imposing any conditions upon the defendant. The court had no authority to shorten the time of notice of trial to two days, in the face of the express provision of the Code that the notice must not be for less than five days, for the defendant was not seeking or receiving a favor. The plaintiff was asking for a preference which the defendant was simply opposing. Chief Justice Daly, in Leland v. Smith, 11 Abb., N. S., 231, held that a judgment, entered upon the report of a referee, where a reference and the hearing on one day’s notice had been ordered, was irregular as such hearing should have been on not less than two days’ notice, and the general term of this court said, in Hunnewell v. Shaffer, 9 N. Y. Supp., 540; 30 N.Y. State Rep., 831, “ the court cannot dispense with the statutory notice of trial, except as a condition of granting a favor.” The notice of trial in this case, even though, it had been regular as to time and service, was defeated and rendered of no avail by the service of the amended answer, changing the issues, within three days after the service of the original answer, and before the cause was reached for trial. Judge Paige says, in Washburn v. Herrick, 4 How. Pr., 15, “If the plaintiff notices his cause for trial before the time allowed to the defendant to' amend shall have expired, he does so at his peril.” This is approved in Plumb v. Whipple, 7 How., 413, and Clifton v. Brown, 27 Hun, 233. Judge Boches referring to these cases in Ostrander v. Conkey, 20 Hun, 421, says : “ These decisions have controlled the practice now for over a quarter of a century, and we are of the opinion that the decisions are strictly correct.” Every effort to hasten the trial of an action should be encouraged, but no cause should, against a defendant’s objection, be forced to trial unless a notice of trial of not less than five days has been served subsequent to the joining of issue irrespective of whether issue was joined by the original answer or by an amended answer which changes the issues. So much of the order ‘ appealed from as requires defendant to pay thirty dollars costs, and directs that the judgment stand as security, is reversed, with ten dollars costs.

Ehrlich, Oh. J., concurs.


author: Per Curiam.

text:
    Caroline E. Ogden et al., App’lts, v. George W. Welden, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed October 3, 1891.)

    Injunction—Building within fire limits—Parties.
    The charter of Binghamton does not authorize the maintenance of an action to enjoin the erection, moving or repair of a building within the fire limits by any party except the city.
    Appeal from a judgment entered in Broome county, on the decision of the special term.
    Action to restrain defendant from moving and repairing a barn within the fire limits of the city of Binghamton.
    A. D. Wales, for app’lts; Jerome De Witt, for resp’t.
   Per Curiam.

Section 23 of title 9 of the charter of the city of Binghamton provides: “ The common council shall have power by ordinance or resolution to prescribe limits in the city within which wooden buildings shall not be constructed, removed, added to or enlarged, without permission of said common council, given by the votes of two-thirds of all the members elected thereto. * * ]Tor violations of ordinances and resolutions made pursuant to the provisions of this section, the common council inay prescribe penalties and fines to the amount of $250, and imprisonment in the county jail, not exceeding 100 days. * * * ”

Section 8 of title 3 of said act also declares: “ Violations of all ordinances and resolutions may also be restrained by the injunction order of any court having jurisdiction, and the city of Binghamton may, in its corporate name, bring actions for such injunctions, and no undertaking upon the granting thereof shall be required of the city. * * * ”

In pursuance of these provisions of the charter, the following ordinance was passed by the common council of said city: Section 1. Eo building, structure or part of the same, except those constructed fire-proof, with outside and party walls of brick or stone, shall hereafter be erected, placed or moved within the fire limits, without the permission of the common council to be given by a vote of two-thirds of all the members elected thereto.”

Under the foregoing provisions of the charter and ordinances, it is claimed by the plaintiffs, who were the owners of a lot within the fire limits in said city, that they were entitled to restrain the erection, moving or alteration of a building on an adjoining lot within such limits contrary to the requirements of such ordinance. This' contention presents the only question involved upon this appeal.

In Stilwell v. Buffalo Riding Academy, 21 Abb. N. C., 472, it was held that a violation of an ordinance of the city of Buffalo, prescribing that the erection, without permission, of a building in whole, or in part of wood, within the city limits, was a nuisance, was not a ground for granting an injunction at the suit of a private individual to restrain the intended use of such building. That the remedy was through the city authorities.

In Young v. Scheu, 56 Hun, 307; 30 N. Y. State Rep., 608, it was held that a police regulation of a municipality, prohibiting the erection of wooden buildings within the fire limits, did not give a cause of action to a party owning a lot adjoining that upon which a frame building was being erected in violation of such regulation, and that an injunction would not lie for the erection of a building prohibited by said ordinance, unless special damage was alleged.

In Anderson v. Doty, 33 Hun, 160, it was alleged that the plaintiff was the owner of certain houses in a street in the city of Rochester; that the defendant had for many years kept, and still did keep, a bawdy house; that the house so kept was a disorderly house and a nuisance, and. that it was situated on the same side of the street as the plaintiff’s houses and some twelve rods from them; that by reason of the maintaining of such bawdy house the plaintiff’s houses were rendered less salable, and that he had been prevented from procuring desirable and responsible tenants for them, whereby he had sustained damages to the amount of $3,000. Held, that these facts did not entitle him to an injunction restraining the defendant from continuing the nuisance maintained by her.

In Moore v. Gadsden, 93 N. Y., 12, it was held that a city police regulation was not of itself sufficient to give a cause of action to a party injured by an act or omission in violation of its terms.

In Mayor, etc., of Hudson v. Thorne, 7 Paige, 261, it was held that a court of chancery would not interfere by injunction to enforce the penal laws of the state, or the by-laws of a corporation, unless the act sought to be restrained was in itself a nuisance.

In President & Trustees of the Village of Waupum v. Moore, 34 Wis., 450, it was held that equity would not enforce by injunction a village ordinance prohibiting an act which was not a nuisance per se. A village ordinance declared it unlawful to erect wooden buildings within certain limits, and imposed a penaltjr for so doing. Held, that the act prohibited was not a nuisance, and would not be restrained by injunction. The fact that, by the terms of the ordinance, it was made the duty of the president and trustees to cause a person about to violate the same to be restrained by injunction, did not alter the rule, or enlarge the jurisdiction of a court of equity.

In the case of The Village of St. Johns v. McFarlan, 33 Mich., 72, it was held that a court of equity had no jurisdiction to restrain a threatened violation of a village ordinance, unless the act threatened to be done would, if carried out, be a nuisance; and the erection of a wooden building within the limits of a city or village was not in and of itself a nuisance, nor did the fact that it was prohibited by ordinance make it such. An increased risk of fire and consequent danger to adjoining property from the erection of a wooden building in a thickly settled portion of a village did not warrant a court of equity in interfering by injunction to restrain the erection.

In Mayor of Manchester v. Smyth, 64 N. H, 380, it was held that the court would not interfere by injunction to prevent the violation of a city building ordinance designed to furnish security against fire, when it appeared that the threatened violation would not constitute a nuisance by increasing the danger from fire.

In High on Injunctions, § 748, it is said: Although the jurisdiction of equity to prevent by injunction the erection or maintenance of nuisances is, as we have already seen, undoubted, the courts are nevertheless inclined to limit its exercise to cases of nuisance _per se, and not to extend the relief to enjoining structures which are merely prohibited by municipal regulation. Where a village ordinance prohibits the erection of wooden buildings within certain specified limits, imposing a penalty for violation of the ordinance, and also provides that the president and trustees of the village shall cause any person violating the ordinance to be enjoined by a court of competent jurisdiction, an injunction will not be granted to prevent the erection of wooden buildings in violation of the ordinance. And the provision in the ordinance directing the officers to proceed by injunction in such case in no manner extends or enlarges the jurisdiction of the court, and the municipal authorities will be left to seek their remedy at law for a violation of the ordinance.”

Again it is said in § 1248: “ Equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation restraining a certain act, unless the act is shown to be a nuisance per se.”

An examination of the authorities cited discloses quite clearly that, independent of a statute specially authorizing an injunction to restrain parties from violating a city ordinance in relation to building within the fire limits, no action for an injunction to restrain such acts can be maintained.

But it is contended that the charter of the city of Binghamton confers upon the city authority to maintain such an action. We think that there is much force in this contention. But an examination of the portion of the charter relied upon by the appellant shows that it fails to expressly confer upon any other party than the city the right to maintain an action for an injunction. The appellant, however, contends that such right is to be implied from the language employed in § 8. We do not think that that section is susceptible of the construction contended for by the appellant. We find nothing in it from which any authority to maintain an action to enjoin the erection, moving or repair of such a building by any party except the city of Binghamton can be properly implied. It follows, therefore, that the judgment in this case should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., Martin and Merwin, JJ., concur.


author: Davy, J.

text:
    The People ex rel. Dennis O’Mara v. The Board of Supervisors of Cayuga County.

      (Supreme Court, Special Term, Cayuga County,

      Filed July, 1891.)

    1. Supervisors—Audit of accounts—Hakdamus.
    Where a board of supervisors has once considered the whole of an account upon its merits and has, in good faith, exercised its judgment and rendered a decision as to the amount which should be allowed, a mandamus cannot thereafter issue to compel it to again audit the account and allow the claimant a greater amount.
    2. Same.
    The court may, by mandamus, require the board to act upon each item of the account, where it has not done so, and arrive at its decision in a systematic and comprehensive way, so that the claimant may know what portion of his bill has been rejected or allowed.
    3. Same—Estoppel.
    Where a portion only of an account is allowed and the claimant waits until the amount allowed is levied and collected and then accepts the same, he is estopped thereby from questioning the regularity or validity of the proceedings of the board.
    Application for mandamus.

      J. Rosecrans, for relator; H. B. Converse, for the board of supervisors.
   Davy, J.

It appeal’s from the petition presented upon this motion that the relator, for services rendered and materials furnished in painting some of the county fences and buildings of Cayuga county, presented a bill in the year 1889 to the supervisors of that county, amounting in the aggregate to $646.05. The board of supervisors contended that the services were unauthorized, and that the county was under no legal obligation to pay the bill. A resolution was finally adopted by the board allowing the relator the sum of $412, which sum was paid to the relator by the county treasurer of Cayuga county, and accepted by him. The same bill, in the year 1890, was again presented to the board of supervisors by the relator, who claimed that he was entitled to have the balance of his bill audited and allowed. The board rejected the bill on the ground that it had once been audited and the amount paid and accepted by the relator.

Application is now made for a peremptory writ of mandamus, requiring the board of supervisors of said county to reconvene and to re-audit the relator’s account.

The board of supervisors derive their power to audit claims against the county from the statute laws of the state, which provide that the board of supervisors of each county in the state shall have power at their annual or special meetings to examine, settle and allow all accounts chargeable against such county, and to direct the raising of such sums as may be necessary to defray the same. 1 B. S., 366, § 1.

They are also required to perform all other duties which may be enjoined on them by any law of this state. There is no statute law, however, requiring them to review decisions of prior boards-in reference to claims that have been once properly considered and audited against the county. There being no law requiring them to perform such an act, they cannot be compelled by mandamus to do what the law does not require them to do. The examination of the account by the board may be regarded and treated in the nature of a trial, and its allowance or disallowance is the decision of that tribunal; and when the board has properly exercised that jurisdiction which the law imposes in auditing claims against the county the sufficiency of the evidence or the injustice of the decision cannot be reviewed or inquired into by mandamus, nor will a mandamus lie to compel the board to reach any different decision. While the writ of mandamus is an appropriate remedy to compel public officers, judicial as well as-ministerial, to act, and where the act is ministerial the officers may be compelled to perform the act according to law; but where the officers are vested with judicial or discretionary power to decide a question upon a disputed state of facts, they cannot be compelled by mandamus to decide in a particular way; in other words: where the claim against the county is not regulated by statute or fixed by contract, the board, in its discretion, may allow such sum as in its judgment is right and proper. In such cases the supervisors have a discretionary power which will not be interfered with by mandamus directing how that discretion shall be exercised. If, however, the statute prescribes the sum to be received for such services, or if the sum is fixed by a binding contract, the board is bound to allow the bill according to the requirements of the statute or contract; they have no discretion over it, and if they refuse to allow the claim a mandamus will lie to compel them to allow it. Where a claim is disallowed by the board because the bill was not made out and presented in proper form, or for any other reason not involving a decision upon the merits, the court might, in such a case, compel a subsequent board by mandamus to again consider it and audit the account; but where the board has once considered the whole claim upon its merits and has in good faith exercised its judgment and rendered a decision as to the amount which should be allowed, a mandamus cannot thereafter issue to compel the board to again audit the account and allow the claimant a greater amount. If the board of supervisors arbitrarily and_ unjustly cut down the claimant’s bill to suit their own notions' and refuse to allow him what he is fairly entitled to receive, he-may have their decision corrected or reversed by the court in proceedings by certiorari, but not by mandamus. Code Civ. Pro., § 2140; People ex rel. McAleer v. French, 119 N. Y., 507; 30 N. Y. State Rep., 72; People ex rel. Millard v. Chapin, 104 N. Y., 100; 5 N. Y. State Rep., 588 ; People ex rel. Myers v. Barnes, 114: N. Y., 326; 22 N. Y. State Rep., 164; 23 id., 795.

The learned counsel for the relator contends, however, that the board should have audited or passed upon each particular item, of the relator’s bill. That is undoubtedly the correct rule. A party who has a claim against the county is required to present to the board an itemized bill, properly verified, showing the nature and extent of the services rendered and the amount and kind of materials furnished. It is no more than just to the claimant that each item should be considered separately and passed upon by the board; this should be done in order to protect the claimant's legal and equitable rights. The board, therefore, should not be permitted to cut down the gross amount of a bill without regard to the validity or justice of the claim. While-the court by mandamus will not assume to dictate to the board how much they must allow upon each item unless the amount is fixed by law or contract, yet it may require the board to act upon each item and to arrive at its decision in a systematic and comprehensive way, so that the claimant may know what portion of his bill has been rejected or allowed ; and if proceedings are taken, to review their decision so that the court may see whether the items were properly rejected or not. People v. Supervisors of Delaware Co.. 45 N. Y., 196.

6In this case if the relator had applied for a writ of mandamus promptly while the board that made the audit was in session, the court, in furtherance of justice, would no doubt have required the board to audit each item in the relator’s bill, and to allow or disallow each item in whole or in part; but be waited until the claim was adjudicated and the amount which the board allowed "him was levied upon the taxable property of the county, and after it was collected he accepted it. tinder these circumstances, and at this late day, the relator is estopped from questioning the regularity or validity of the proceedings of the board. If the relator was not satisfied with the amount allowed him, he ought not to have accepted the money ; he should have at once pursued the remedy afforded him by law; if the amount audited did not fully compensate him for materials furnished and services rendered the county, he was under no legal obligation to accept it; he could have refused it .and instituted legal proceedings for the enforcement of his whole demand. He elected, however, to accept the amount offered and he cannot now repudiate his choice. By accepting the amount tendered he waived his right to further prosecute his claim. It is a sound rule of law that a party shall not be permitted to divide up and prosecute a claim in piece-meals; and it is a rule equally as well settled that a party cannot accept the benefit of a judgment and at the same time appeal from it. Knapp v. Brown, 45 N. Y., 209 ; People ex rel. McDonough v. Sup’rs, 33 Hun, 307 ; People ex rel. Brown v. Supervisors of Herkimer Co., 3 How., N. S., 242.

The acts of the relator are conflicting and inconsistent, the one with the other, and upon principle or rules of law he is estopped from questioning the regularity or validity of the audit, ana the application for a mandamus must be denied.


author: Brown, J.

text:
    Martin Kramrath, Resp’t, v. The City of Albany, App’lt.

      (Court of Appeals, Second Division,

      Wiled October 6, 1891.)

    1. Municipal corporations—Albany—Preparation of rooms for use of officers.
    The common council of the city of Albany directed the committee on public buildings “to set apart and fit up rooms for the use of city officers who had been left without any office room by reason of the destruction of the city hall by fire.” Held, that the power given to the committee to fit up the rooms conferred authority to do whatever was necessary to that end.
    2. Same.
    The leasing or furnishing of a’ room for the transaction of the city’s affairs is a mere business act, and in its power to perform it the city differs in no respect from any ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents and committees.
    3. Same.
    A corporation, like an individual, is liable upon a quantum meruit when it has enjoyed the benefit of the work performed or goods purchased, when no statute forbids or limits its power to make a contract therefor.
    ■4. Same—Delegation of power.
    The fact that the order to plaintiff was given by one of the committee, or even by the janitor, as it appeared to have been done in some instances, affords no defense to the claim. Such matters do not belong to the governmental department of the city, and it can afford no defense that the power to purchase was delegated to an inferior agent of the city.
    Appeal -from a judgment of the general term of the third judicial department, which affirmed a judgment of the county court of Albany county.
    Action for goods sold and delivered to the defendant.
    On February 10, 1886, the city hall, in Albany, was destroyed by fire. On February 12th. the common council of the city passed the following resolution, which was duly approved by the mayor:
    “ Resolved, That the name of the city building be and the same hereby is changed to ‘city hall and city building; ’ that the committee on public buildings and parks be and is hereby authorized and directed to set apart and fit up rooms for the use of city officei’s who have been left without any office room by reason of the destruction of the city hall by fire; and that said committee also fit up a common council chamber in said building for meetings of the board of aldermen.”
    The committee on public buildings and parks consisted of five members, two of whom were John Zimmerman and John T. Grorman.
    The city officers who had been left without any office room by reason of the destruction of the city hall by fire were the mayor, chamberlain, receiver of taxes, city surveyor and board of health.
    In the necessary fitting up of rooms in the city building for said city officers the plaintiff sold and delivered to and furnished and performed work and labor for the defendant to the amount and of the value of $242.98.
    The trial court found as facts that the committee on public-buildings and parks set apart and ordered to be fitted up in the city building the rooms for the use of the city officers in which the work was performed by the plaintiff and the materials furnished by him were used.
    That the sale, delivery, furnishing and performance of the work were all and each made and done by direction of said committee, and pursuant to the resolution above set forth, and that the common council had duly ratified and confirmed the acts pursuant to-which the plaintiff’s claim was contracted.
    Judgment having been entered for the plaintiff and affirmed at the general term, leave was granted to appeal to this court.

      D. Cady Herrick, for app’lt; Edward J. Meegan, for resp’t.

       Affirming 26 N. Y. State Rep., 983.

   Brown, J.

The facts found by the learned trial court fully sustain the judgment in this action.

The fourth finding, that “ the committee on public buildings set apart and ordered to be fitted up in the city building rooms for the use of said officers,” was not excepted to, and is conclusive upon this court in our consideration of the case. We need not inquire, therefore, whether it had evidence to support it or not.

/The power delegated to the committee by the resolution of the common council was to set apart and fit up rooms for the use of city officers who had been left without any office room by reason of the destruction of the city hall by fire.”

The officers who had thus been deprived of their offices were specified in the fourth finding, to which, as already stated, there is no exception.

It thus appears, without dispute, that the committee did the very thing it was empowered to do, unless some distinction is to be made between- the fact that the committee was, by the resolution, directed to “fit up the room,” and the finding is that it “ ordered the room to be fitted up.”

But the learned counsel for the appellant makes no such distinction. His claim is that the committee never met or acted together, and that the plaintiff sold the goods on the order of Zimmerman and Gorman, and that their action was individual and not-by authority of the committee. But we must accept the finding of the trial court, which is that the committee gave the order. This assumes joint action.

The question of the defendant's liability becomes, therefore, one-of corporate power. We are not referred to any provision of the-charter of the city which limits the power to make such purchases as are involved in the plaintiff’s claim, or any which provides that such contracts shall be made in a particular manner.

The section which declares it unlawful for any member or members of the common council, whether a committee or otherwise, to make any disbursement of corporate moneys or incur any expense in behalf of the city unless previously ordered by the common council, etc., was a limitation upon the action of committees and individual aldermen. It did not curtail or affect the power of the common council. Albany City Nat. Bank v. City of Albany, 92 N. Y., 363.

But the appellant’s claim is that authority given to the committee was one calling for the exercise of judgment and discretion and could not be delegated.

The principle of law is well established that public powers or trusts devolved by the charter upon the common council are to be exercised when and in such manner as it shall determine, and cannot be delegated. In other words, the governing body of the city cannot confer upon one of its committees the power to perform acts which relate to the government of the city.

But that principle has no application to this case.

The leasing or furnishing of a room for the transaction of the -city’s affairs is a mere business act, and in its power to perform it the city differs in no respect from an ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents or committees.

The power given to the committee to “fit up the rooms ” conferred authority to do whatever was necessary to that end.

It would doubtless tend generally to an economical administration of affairs if the articles required should be specifically enumerated by the council or a limit put to the expenditure to be made. But the argument that such general authority may lead to extravagance and waste of the municipal funds has no foundation in this particular case, as the committee appear to have kept well within the necessities of the occasion and no complaint is made that the carpets and desks sold by the plaintiff were not proper within the requirements of the resolution and fully worth the prices charged.

It would hardly be practicable for all or a majority of the members of a common council to attend to the details of such purchases, nor can it be said to be unlawful for the committee to permit one or two of its members to make selection of the particular article of furniture required. And when the work and material have been actually ordered by the common council, and the city has had the full benefit of them without objection from any of its officers, very slight evidence is sufficient to support a finding that any irregularities in the committee’s action have been waived and their general acts ratified.

Assuming then that in this case the committee’s action in permitting one of their number to order and select the goods sold , by the plaintiff was an irregularity, the evidence is ample to sustain the finding of the court that the acts pursuant to which the plaintiff’s claim was contracted were ratified and confirmed. But upon another principle of law the defendant is liable.

That corporations may be 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 established. Within the practical application of that rule, such contracts must be within the scope of the corporate powers and must not be one which the ■charter or law governing the corporation requires should be made in a particular way or manner. Dillon on Municipal Corp... §§ 383-384, and cases cited in note; 2 Kent’s Com., 291; Bank of Columbia v. Patterson, 7 Cranch, 299 ; Peterson v. Mayor, 17 N. Y., 449; Harlem Gas Light Co. v. The Mayor, 3 Robt., 124 aff’d 33 N. Y, 309 ; Nelson v. Mayor, 63 id, 535; McCloskey v. Mayor, 7 Hun, 473.

When the act done is ultra vires it is void and there can be-no ratification, and when the mode of contracting is limited and Srovided for by statute, an implied contract cannot be raised. ■ut a corporation, like an individual, is liable upon a quantum meruit when it has enjoyed the benefit of the work performed or goods purchased, when no statute forbids or limits its power to make a contract therefor.

Hone of the cases cited by the appellant hold to the contrary. Brady v. Mayor, etc., 20 N. Y., 312; Donovan v. Mayor, etc., 33 id., 291; McDonald v. Mayor, etc., 68 id., 23; Parr v. Greenbush, 72 id., 472; Smith v. City of Newburgh, 77 id., 130 ; Dickinson v. Poughkeepsie, 75 id., 65; Lyddy v. L. I. City, 104 id., 218 ; 5 N. Y. State Rep., 665, were all cases where the contracts sought to-be enforced were either ultra vires or were executed in express-violation of law.

Here the power to make a contract for the work done existed, and the city having had the benefit of such work is liable for its-value.

The fact that the order to the plaintiff was given by one of the-committee or even by the janitor, as it appears to have been done-in some instances, affords no defense to the claim. If the council had ordered the committee 'to purchase coal to heat the public-buildings, it would not be seriously claimed, after the coal had been delivered and burned, from the fact that the committee permitted the janitor to give the order to the merchant that the city were relieved from paying. Such matters do not belong to the* governmental department of the city and it can afford no defense-that the power to purchase was delegated to an inferior agent of the city.

The judgment should be affirmed, with costs.

All concur, Vann, J., in result.


author: Parker, J.

text:
    Julia R. Drake, Resp’t, v. Clinton F. Paige, App’lt

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Subrogation—Title.
    Hazard Lewis by Ms last will gave the residue of Ms estate to Ms wife- and three children share and share alike, with a power to executors to sell to pay debts, etc., and to partition for the purpose of dividing the estate. The son Frederick mortgaged his interest to plaintiff’s father and the latter foreclosed and took title. Defendant Paige claims an equity superior to plaintiff .on the ground that he as co-executor had been obliged to repay a certain sum of money misappropriated by Lewis prior to the giving of the mortgage to Drake. Held, that the language of the will placed the title of one-fourth part of the estate in Lewis so that his mortgage to Drake-was valid and Lewis had no interest in the real estate to which Paige could tie subrogated, as against a mortgagee in good faith who took prior to the payment of the debts of the estate.
    2. Same.
    The authority to partition by conveyance to the legatees or to. sell and divide the proceeds could not be exercised, until after the payment of all the debts, and so Lewis had no equitable interest in the real estate which could be appropriated to the benefit of Paige, as the court could not treat the application of the proceeds of the mortgages received upon the sale to the individual use of Lewis, as a step in the exercise of the power to partition which the will conferred.
    Appeal from judgment of the general term of the supreme court, fourth department, entered on an order affirming a judgment entered bn the report of a referee.
    This action was brought to partition certain lands devised by the eighth clause of the last will and testament of Hazard Lewis, which reads as follows: “All the rest and residue of my estate whether real or personal of every name, kind and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise and bequeath to my said wife Maria, to my said daughters, Jane E. Drake and Caroline L. Paige, • and to my said son Frederick, to be divided equally between them, share and share alike. Each of the four said persons to have one-fourth part thereof.”
    ■ It is not sought in this action to partition all of the lands included in the above devise, but only such portion thereof as the executors did not sell pursuant to the power conferred on them by the ninth clause of the will, which is so importantly related to this controversy as to require that it be quoted here. “ I hereby authorize and empower my executors hereinafter named to sell, deed, grant and convey, by deed under seal with common covenants of warranty, any or all my real estate not in this will particularly described and devised, "and the avails apply to the payment of my debts and funeral and testamentary expenses, or at their discretion to lease any portion of such real estate for the purpose of paying such debts and expenses. And I authorize them to partition the same after the payment bf debts and expenses amongst those in the eighth devise herein named; or to sell and deed the same and the avails divide among those named in said devise and bequest eight My intent is that all devises of every name and kind in this will contained shall pass the real estate to the respective beneficiaries, free from incumbrance - and that any and all mortgages and judgments on either of them that shall cover, -or be a lien upon any of the lands or any portion of the lands in this will devised and described shall be paid by my executors from the avails of my personal estate not herein bequeathed, and the avails of lands not specifically devised, and°I hereby direct and empower my said executors to appropriate the avails of my personal estate not herein bequeathed and the avails of my real estate not in this will devised by specific description to the payment of all mortgages and all judgments incumbering any and all real estate in this will devised.”
    The plaintiff asserts title to three of the four undivided shares in the real estate attempted to be partitioned. That she is the owner of two of the shares is not disputed. But the defendant Paige challenges her right, as against him, to the share of Frederick Lewis.
    Lewis mortgaged his interest to the father of the plaintiff. It was subsequently foreclosed and the title obtained on that foreclosure is now in the plaintiff. The defendant Paige claims that he has an equity superior to the rights thus acquired by the plaintiff, because as co-executor with Lewis under the will before us he has been obliged to pay $7,189.97, moneys misappropriated by Lewis and applied to his own use. The appropriation of such moneys to Lewis’ individual use took place prior to the execution and delivery of the bond and mortgage to Drake, and the circumstances attending it were as follows: In April, 1871, the executors sold a piece of land devised by the eighth clause of the will, and in part payment thereof received a bond and mortgage for $7,000. Subsequently and in October, 1872, the executor Lewis, being in embarrassed circumstances, desired to dispose of the bond and mortgage and apply the proceeds to his individual use. And Paige, with knowledge of such desire and purpose on the part of Lewis, and with intent to give it effect, united in the execution of an assignment thereof.
    March 26, 1872, the executors sold another piece of land and received in payment a bond and mortgage for $4,500, which after the principal had been reduced to $3,600, was on the 4th day of March, 1873, assigned and the proceeds applied to the individual use of Lewis. And it was the purpose of both executors in selling the bond and mortgage to procure the moneys for the individual use of Lewis.
    Because of Paige’s participation in the unauthorized disposition of the proceeds of such bond and mortgages he, as well as Lewis, was in an accounting before the surrogate charged individually with the payment of the moneys thus misappropriated. And Frederick Lewis being unable to comply with the decree of the surrogate in such respect, Paige was compelled to make good the devastavit. For the moneys thus paid he seeks reimbursement out of the share devised to Frederick Lewis, in the lands remaining unsold. To that share plaintiff asserts title obtained under the following circumstances. June 3, 1873, Frederick Lewis and wife executed and delivered to Patrick H. Drake a bond and mortgage for the sum of $60,000 upon Lewis’ undivided one-fourth interest in the residuary estate, and also upon certain other lands. The consideration for the mortgage was stated in an agreement executed at the same time, which provided, among other things, that it was given to secure Drake for advances to bo made in liquidating certain judgments, and in the payment of certain promissory notes of Lewis upon which Drake was an endorser. And it appears that at the time Drake was liable as an endorser upon the paper of Lewis in an amount exceeding $30,-000, and that the judgments, then a lien on Lewis’ property, exceeded in amount $31,000, not including interest thereon from the date of their entry.
    Drake subsequently paid the notes and advanced upwards of $31,000 to pay the judgments, but instead of taking satisfaction pieces from the judgment creditors, he took assignments to his wife or to himself. Default being made, the mortgage was subsequently foreclosed, and on or about the 11th of February, the mortgagee, Drake, became the purchaser at the foreclosure sale. The regularity of the foreclosure proceedings is not questioned.
    Thereafter the rights thus acquired by Drake passed to his daughter, this plaintiff. The various steps leading to that result are not of importance here.
    Other facts appear in the opinion.

      Alexander Cummings, for app’lt; Stephen C. Millard, for resp’t.
   Parker, J.

If the title to the share devised to Frederick Lewis was still in him and unencumbered, equity might in this suit protect Paige, by charging such share with the amount of Lewis’ misappropriation. But Lewis for the purpose of securing certain obligations, and causing the payment of others, undertook to mortgage the share of the estate devised to him. And default being made, foreclosure and a deed to the plaintiff’s predecessor in title resulted.

Our first inquiry, therefore, is whether the title was in Lewis so that he could mortgage or convey an undivided one-fourth of the real estate, devised by the eighth clause of the will, and we are thus brought to an examination of its provisions.

The eighth clause devised to Frederick Lewis and three others each an undivided one-fourth share in and to all of the real estate of the deceased not thereinbefore disposed of, and embracing the premises in controversy. Considered by itself, the language of the eighth clause was operative to vest title in the devisees therein named.

The ninth clause conferred upon the executors, first: power to sell a portion, or all of the real estate devised by the eighth clause for the payment of debts, funeral and testamentary expenses; and second, authority to partition that which remained among the devisees. But the power to partition or sell for the purpose of dividing the proceeds could not be exercised until after the payment of debts and funeral expenses, with the payment of which the personal estate was first charged, and only in case it should prove insufficient were the executors authorized to sell real estate tor that purpose.

In the event of a sale of real estate for the purpose of realizing moneys with which to pay debts, should any remain after their payment, it stood in the place of the land, having for the purposes of partition among the devisees the same incidents and attributes.

And if in making partition it should be found necessary to sell some portion of the real estate and divide the proceeds among the devisees, the moneys would still retain the character of real estate for the purposes of partition and also for the retention of liens. Ackerman v. Gorton, 67 N. Y., 63.

Again the devise was not to the executors to sell, but to them was given merely a naked power which after the payment of debts they mignt exercise or not, and the estate vested in the devisees subject to the execution of such power, and not in the executors, who simply took a power in trust. Reed v. Underhill, 12 Barb., 113; Crittenden v. Fairchild, 41 N. Y., 289; Heizel v. Barber, 69 id., 1. Lewis could, therefore, mortgage or convey his undivided one-fourth interest in the residuary estate. His grantee, or a person acquiring title by the foreclosure of a mortgage given by Lewis, would be entitled to receive his share in the event of partition by the executors, or if partition should be made by selling lands and dividing the proceeds, the moneys divided would, for the purpose of partition,, retain the character of real estate,, and pass to his successor in title.

The suggestion that Drake was not a mortgagee in good faith and for value is not well founded. At the time of the execution and delivery of the mortgage Drake was not aware of the existence of any claims on the part of Paige against Lewis, and the mortgage was immediately placed on record, and notice thereby given of his mortgage interest in Lewis’ residuary estate. Nor was the consideration inadequate, for at that time there were judgments against Lewis, which had been duly docketed in the county clerk’s office of the county in which the real estate was situate, exceeding $31,000 in amount, and which were a lien on this real estate, which was thus liable to a sale under execution.

In addition, Drake was an endorser on' promissory notes of which Lewis was the maker, and it was to provide for the payment of'these notes, and. the judgments then a lien on the property, that the mortgage was given. It is true that instead of causing the judgments to be satisfied of record he obtained assignments thereof. But that fact does not affect the situation favorably to the defendant Paige. The judgment creditors received the amount due on the judgments and the notes were paid.

The fact that Drake, as a greater measure of precaution, saw fit to take assignments rather than satisfaction pieces, was a matter about which Lewis could have complained, because not a technical compliance with the agreement, and he might have compelled satisfaction of record. But he made no objection to the manner in which the business was done, for his purpose was accomplished when the creditors were in fact paid, to which end the mortgagee Drake applied more money than the bond and mortgage were given to secure.

The interest then which Frederick Lewis had in the real estate in controversy, at the time of the execution of the mortgage, has by foreclosure and subsequent conveyance become vested in the plaintiff, and as to such interest the doctrine of subrogation cannot be invoked in aid of the defendant Paige, for Lewis has no interest therein to which he can be subrogated.

Clapp v. Meserole, 1 Keyes, 281, is not in conflict with the position tin us taken. In that case the real estate was devised to the executors in trust' to receive the rents and profits until they should sell the property, which they were directed to do, and to divide the proceeds in certain proportions among the legatees.

The surrogate subsequently decreed that they should pay certain sums to the several legatees, which they omitted to do, and thereafter moneys came into the hands of their successor in representation, and the assignee of the persons to whom the executors had sold their interest as legatees and devisees under the will prior to the devastavit claimed to be entitled to share therein, in the same proportion as he would have been entitled to had the executors made default. And the court held that his position was not well taken.

But it will be observed that the title to all the real estate was in the trustees not in the legatees. The interest of a legatee was assignable, but could not be freed from the trust obligation. The assignee could only acquire the right to succeed to that to which his assignors would become entitled on the distribution, and as they were both trustees and legatees, what could be realized was in some measure dependent on the manner in which they performed their trust. The title to the moneys which was the subject of controversy being in the trustees, and the legatees other than the executors not having, in fact, received the sums to which they were severally entitled before the executors as legatees were permitted to take anything, the court directed its application for their benefit, holding that the former unexecuted decree should not be considered as extinguishing their legacies to the extent of the amounts therein directed to be paid.

But the claim most earnestly pressed on our attention is, that the court should hold that Lewis now has an equitable interest in the real estate, which equity will lay hold of, and appropriate to the benefit of Paige; that conceding the mortgage from Lewis to Drake and the subsequent foreclosure were effective to divest Lewis of all title, still it did not operate to vest an undivided one-fourth in the purchaser at the foreclosure sale, because Lewis’ interest was less than one-fourth in the real estate remaining unsold at the date of the mortgage, and that subsequently Lewis acquired an equitable interest in such real estate which he still has, and to which Paige should be subrogated. The argument made in support of such contention briefly is, that the mortgages, the proceeds of which were applied to the individual use of Lewis, were received in part payment for real estate devised under the eighth clause of the will, the sale of which, together with subsequent assignment of the mortgages, and the application of the proceeds to the individual use of Lewis, all took place before the giving of the bond and mortgage to Drake.

And inasmuch as the will expressly authorized a sale of lands for the purpose of making partition among the legatees, the moneys thus received by Lewis, with the knowledge and consent of his co-trustee, should be regarded as a payment to him under the authority to partition, and his one-fourth interest in the residuary estate be held to be diminished to that extent.

Necessarily, therefore, the mortgage to Lewis could not and did not embrace an undivided one-fourth interest, and the other three legatees in a subsequent partition, whether made by the executors or by the court, were entitled not only to an undivided three-fourths ox the real estate remaining unsold, but also to such a share of the other undivided one-fourth as would make the realization of each legatee equal to that of Lewis. Such being the condition and situation of the respective interests at the time Lewis gave the mortgage to Drake, it necessarily embraced only such share as Lewis then had, which was less than one-fourth, and measures the extent of interest acquired by plaintiff’s predecessor in title. That while the legatees, to whom were devised the other three shares, were, because of the special partition to Lewis, entitled to the greater interest in the remaining i’eal estate than an undivided three-fourths in any subsequent partition, still they elected before the surrogate to compel the executors to account for and pay over the moneys partitioned to Lewis, so that Lewis now has an equitable interest in the property equal to the amount of the proceeds of the two mortgages, to which this defendant Paige, as surety, should be subrogated.

This contention on the part of the appellant is not well founded. It will be observed that its foundation rests on the assertion that the court may treat the application of the proceeds of the two mortgages to the individual use of Lewis as one step in the exercise of the power to partition, which the will conferred.

If such a holding be not permissible, then the argument is without support; and it seems to us very clear that it is not, for two reasons:

First. Because at the time of the appropriation of the Morgan and King mortgages the executors did not have the power to partition. The executors were without authority to exercise the power conferred upon them, save in the manner and for the purpose declared by the testator. By the terms of the will there was first given a power to sell for the purpose of paying the debts of the testator; and second, to sell if necessary to make partition. But the authority to partition by conveyance to the legatees, or to sell and divide the proceeds, could not be exercised until after the payment of all the debts, which was made, in effect, a condition precedent to any attempt at making a division of the residuary real estate.

But when the application of the proceeds of the mortgages to Lewis’ individual use was made, the debts had not been paid. The referee finds that at that time, “ the debts of the estate of Hazard Lewis had not been fully paid; the said real estate was quite largely in debt. There was a mortgage of $5,000 against the estate held by the Binghamton Savings Bank which remained unpaid, and other indebtedness the precise amount of which does not appear." We do not understand the correctness of this finding to be questioned, but in any event its approval by the general term, in view of the evidence to support it, makes its conclusive here.

Second. The executors did not attempt to partition. Lewis was in need of money, and with the knowledge and consent of his co-executor Paige the mortgages were sold, and the avails taken and used by Lewis, who testified that he borrowed the money intending to return it to the estate. And there is no evidence tending to suggest that the executors had any other purpose in view.

Upon that question the learned referee found “ that the sales * * * were not made for the purpose of partitioning or dividing any portion of the said residuary estate among the said four persons. Or that the said Lewis might receive his share, or any portion of his share of the residuary estate, or the avails of the said residuary estate. That the said Lewis * * * intended to replace and return to the estate the money thus appropriated and taken by him.”

The facts to which we have referred seem to deny the right of a court of equity to treat the moneys wrongfully taken by Lewis as a partial partition under the will. But if it were a proper exercise of the equitable power of the court to declare that which was in fact a conversion to have been a partition, notwithstanding the time had not arrived when partition could be made under the will, still a court of equity would refrain from making use of the power because of the absence of such an equity in favor of Paige as against Drake as would justify its employment. Drake in good faith, and for value, took a mortgage covering the real estate devised to Lewis and placed it on record. He knew nothing of the transaction out of which had grown the claim of Paige against Lewis.

Page it is true has been called on to respond for the devastavit of Lewis. Because of it, he has a claim against him, but his equity is certainly inferior to that of the good faith of the mortgagee, whose interest in the real estate Paige implores a court of equity to cut down in his behalf. Inferior, because it was the legitimate outcome of a wrongful act to which Paige was a party. As one of the trustees of the will of Hazard Lewis, it was not only his duty to refrain from using for his own benefit any portion of the assets intrusted to the charge of the executors, but also to use reasonable care to prevent his co-executor from doing so.

But it appears from the evidence, and the referee has found the fact to be, that Paige united in the assignment of the mortgages for the purpose of enabling Lewis to obtain the proceeds for temporary use. Doubtless it was the intention of both, as Lewis testified, that the money should be returned, but, as not unfrequently happens in the use of moneys unlawfully obtained, the intention to restore it to its proper place was prevented by the inability of the trustee. The intention of the parties to a wrong to thereafter right it, does not alter the character of the act. So when Paige secretly assented to an appropriation of trust funds to the temporary use of Lewis, he did an act in violation of his duty as trustee. An act which rendered him liable to respond to the estate for the full amount. This he has done, and while the conduct of both executors was wrongful, because his co-trustee alone had the benefit of the money, Paige has an equity superior to that of Lewis. But this superior equity as between the wrongdoers, the outgrowth of a violated trust, is not superior to that of Drake, who, in ignorance of this breach of duty, took a mortgage upon what the records declared to be an undivided, one-fourth of the residuary real estate.

The judgment should be affirmed.

All concur, except Brown, J., absent.

       Affirming 24 N. Y. State Rep., 131.


author: Haight, J.

text:
    Christian Kummel, Resp’t, v. The Germania Savings Bank of Kings Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Banks—Savings bank—Pass book.
    The pass hook of a savings hank cannot he regarded as negotiable, and ' its possession does not constitute proof of a right to draw money thereon.
    3. Same—By-laws printed in book.
    Assuming that the hy-Iaws printed in the book are binding upon the depositor and constitute a contract between the parties, the duty still devolves upon the_ officers of the bank to exercise care and diligence in order that their depositors may be protected from fraud and larceny.
    3. Same.
    Where the agreement in the pass book that payments shall not be made except to the depositor or upon a written order, duly acknowledged, is modified by_ another that the bank will not be responsible for fraud committed on its officers in producing the book, etc, this does not permit the officers to carelessly shut their eyes and pay to any person presenting the pass book, but, on the contrary, they owe the depositor active vigilance in order to detect fraud and forgery.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment entered upon a verdict at the Kings county circuit.

      Matthew Hale, for app’lt; Hugo Hirsh, for resp’t.

       Affirming 35 N. Y. State Rep., 161.

   Haight, J.

This action was brought to recover the sum of $450.11, being balance of amount deposited by the plaintiff with the defendant. -

It appears that this balance had in fact been paid by the bank upon a forged check or receipt to a stranger who had stolen the pass book from the plaintiff. At the time the plaintiff opened his account with the bank he subscribed his name in a book kept for that purpose, giving his place of residence, place of birth, the names of his parents, brothers and sisters, etc. A pass book was issued to him in which was entered the amounts of deposits made by him from time to time.

Among the by-laws printed in the book appears the following: “ Payments shall not be made unless the depositor shall call for and receive the same in person or by an attorney duly constituted by writing, signed and acknowledged. When the payment is made the pass book must be produced. When the entire deposit is withdrawn the pass book must be surrendered. * * * The bank will not be responsible to any depositor for any fraud committed on the officers in producing the pass book and drawing money without the knowledge or consent of the owner.”

The money in controversy was drawn upon two different occa sions; $100.00 on the 13th day of April, 1888, and the remaining $350.11 on the 17th day of April thereafter . The court in submitting the case to the jury charged that the by-laws printed in the pass book constituted a contract between the depositor and the bank and governed their relations ; that a payment made in good faith in the exercise of reasonable care and diligence by the officers of the bank to a person presenting the pass book, even though obtained by fraud, and who was not a depositor, was a valid payment. The question thus presented for the determination of the j ury was as to whether the officers of the defendant had exercised ordinary care and diligence in seeing that the person to whom the money was paid was authorized to receive it. The first question which we are called upon to consider is as to whether the evidence was of such a character as to justify the submission of this question to the jury. The $350.00 item was paid by the cashier, Frederick Koch. He states that he asked the person presenting the bank book where he lived, and that he at first ■answered Hew.York, and that afterwards he stated that he had lived in Brooklyn before that at 56 Tillary street; that he did not ask him any further questions but paid him the money.

The other payment was made by Oscar Thomas, a clerk who assisted the cashier. He judged from the first that the signature to the receipt was not exactly right, and asked the person presenting it if he could not write with a more fluent hand, and received the answer that he was not feeling well. He thinks he put the other questions to him appearing upon the signature book and that they were answered correctly. As to the payment of the $350 receipt, the question of negligence was clearly for the jury. It affirmatively appears that the cashier did not avail himself of the means at hand to identify the person presenting the pass book and forged receipt. As to the $100 payment the question is involved in more doubt, but in view of the fact that the acting cashier making the payment was an interested witness, that the signature to the receipt was such as to lead him to judge that it was not right, and that upon the trial the signature of the plaintiff, as well as that upon the receipt, was before the court and the jury for comparison, upon which the variance may have been so great as of itself to put a prudent person upon inquiry, we are inclined to the view that this question was also one for the jury and that no error is apparent that would justify a reversal.

In the second place, it is contended that the bank having paid in good faith to the party presenting the pass book, it is not liable even though negligent, and the case of Schoenwald v. Metropolitan Savings Bank, 57 N. Y., 418, is cited as sustaining such a rule. There are some expressions in the opinion in that case which tend to sustain the appellant’s claim, as, for instance, “nor do I see that it was at all material to the defendant whether the order was a forgery or not. The defendant was at liberty to pay the amount of the deposit to any person presenting the pass book. Ho order of the depositor was required. A forged order, while ordinarily of no legal effect, was at least equal to no order at all, so that it appears to me the bank had the right to make the payment it did on a simple production of the pass book.” But that doctrine has been criticised and has not been followed in later cases. Allen v. Williamsburgh Savings Bank, 69 N. Y., 314; Boone v. Citizens Savings Bank, 84 id., 83—88; Smith v. Brooklyn Savings Bank, 101 id., 63. In the Schoenwald case the chief question litigated was as to whether the order upon which the money was paid was a forgery, and the question of negligence does not appear to have "been considered.

In the case of Appleby v. Erie County Savings Bank, 62 N. Y., 12, it was held that the rules prescribed by a savings bank for its protection in the payment of deposits do not dispense with the exercise of ordinary care upon the part of its officers, and if by a custom "or regulation adopted by it designed to prevent fraud a fact is brought to the knowledge of the officers calculated to excite suspicion and inquiry, a failure to institute such inquiry is negligence, for which the bank is liable.

It was, however, held that inasmuch as the charge of negligence rested upon the dissimilarity in the signatures, that the discrepancy should be such as could be readily discovered by a competent person; that there was no evidence of that character, and inasmuch as the trial court had the benefit of a personal inspection, the difference in the letters may not have been such as h> indicate a different handwriting; that on review the court had no means of determining but that the trial court properly decided that the dissimilarity was of such a character that negligence could not be predicated upon a failure to discover it. See cases above cited.

The pass-book of a savings bank cannot be regarded as negotiable, and its possession does not constitute proof of a right to draw money thereon. The book imports a liability of the bank to the depositor for the amount of moneys entered therein as deposited, and an agreement to repay at such time and in such manner as he shall direct. Assuming that the by-laws printed in the book are binding upon the depositor, and constitute a contract between the parties, we still think that the duty devolves upon the officers of the bank to exercise care and diligence in order that their depositors may be protected from fraud and larceny. The defendant by its by-law, to which we have called attention, has undertaken with the plaintiff that payments shall not be made unless he shall call for the same in person or by an attorney, duly constituted by writing, signed and acknowledged. Here is a positive and direct agreement which would absolutely protect the plaintiff from losses of this character. This agreement, however, must be considered as modified by that which follows, to the effect that the bank will not be' responsible for fraud committed on its officers in producing the pass-book and drawing money without the knowledge or consent of the owner, but this modification does not permit the officers to carelessly shut their eyes, and pay to any person presenting the pass-book, but, on the contrary, they owe the depositor active vigilance in order to detect fraud and forgery.

The judgment should be affirmed, with costs.

All concur.