text:
    Harvey Lichfield, as Commissioner of Highways, etc., Appellant, v. Thomas Fitzgerald, Respondent.
   Judgment affirmed. Held, that the defects in the undertaking delivered to the justice were waived by the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    Joshua W. Rapplye, Respondent, v. Robert C. Armstrong, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Harvey W. Brown, Respondent, v. Franklin J. Morse, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company, to Appraise Lands of Sidney Smith et al.
   Order affirmed, with ten dollars costs and disbursements.

Haight, J., not sitting.


text:
    Stewart Shinnebarger, Respondent, v. John D. Condeman, Executor, etc., Appellant.
   Judgment affirmed.


text:
    Marvin W. Phillips, Respondent, v. Stiles B. Ellsworth et al., Appellants.
   Judgment and order affirmed. Haight, J., not sitting.


text:
    John Q. A. Woodcock, Respondent, v. Alexander Smith, Appellant.
   Judgment of the Justices’ and County Court reversed. Held, that in view of the defendant’s evidence that he sold clover seed from the same lot to the witnesses Burns, Crittenden and Dexter that he did the plaintiff, the questions put to them were competent and should have been admitted.


text:
    Harrison Hoyt, Respondent, v. John Green, Appellant.
   Judgment affirmed.


text:
    Nathan Cobb et al., Respondents, v. Dwight B. Cowles, Impleaded, etc., with others, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide the event, unless the plaintiffs stipulate that the judgment may be reduced m the sum of fifty dollars, with the interest thereon from the 23d day of May, 1877, to the date of the entry of judgment; if stipulation is given, the judgment for the amount so reduced affirmed, without costs of this appeal to either party.


text:
    Francis Gartlan, Respondent, v. Philander W. Fobes, as Suceessor, etc., Appellant.
   Judgment affirmed.


text:
    Adeline M. Perigo, Respondent, v. Catherine Dowdall.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Samuel P. Fox, as Commissioner of Highways, v. The Erie Preserving Company.
   Order reversed, without costs, with leave to the defendant to serve an amended answer in twenty days.

Haight, J., not sitting.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company, Respondent, to acquire Title to Certain Real Estate belonging to Jacob Crouse and Mrs. Jacob Crouse, Appellants.
   Orders appealed from affirmed, with ten dollars costs and disbursements. Held, that, neither an affidavit of one of the commissioners, nor proof of statements made by him as to the basis upon which the commissioners pro- ' ceeded in reaching their decision, can' be received to impeach their report.


text:
    In the Matter of the Receivership of the Syracuse, Chenango and New York Railroad Company, Respondent.
   Application of the receiver for instructions as to the sale of certain premises. Order appealed from, directing receiver to convey, etc., reversed. Following the order of this court made at the April term, 1882, dismissing the petition of the receiver for authority to sell, etc.


author: Per Curiam.

text:
    William C. Ruger et al., Respondents, v. James J. Belden et al., Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Per Curiam.

Action for attorney’s services. The services were rendered in several different actions or proceedings, running through a period of six years. According to the affidavits on the part of the plaintiffs and the pleadings, the services were rendered under several separate retainers, and' the Special Term is deemed to have so held. The value of the services is put in issue by the pleadings, and the trial will involve the examination of a large number of items of service, with a view of determining the value of each. We think the action is referable.


text:
    Mary Barber, Respondent, v. Alonzo H. Lewis, Appellant.
   Judgment and order affirmed, with 'costs.

Haight, J., not sitting.


author: Davis, P. J.:

text:
    FREDERICK CASS, Respondent, v. SAMUEL B. HIGENBOTAM, Appellant.

      Tender — requisites of — Pledge—when a refusal of the pledgee to deliver up the property dees not constitute a conversion of it.

    In this action, brought upon a promissory note, the defendant set up as a defense a tender of the amount due upon the note with interest and costs, made after the commencement of the action, and as a counter-claim that certain diamonds had been pledged by the defendant to the plaintiff at the time of making the note; that after the commencement of this action he had made a tender as above set forth, and demanded a return of the diamonds, and that the plaintiff had refused to return the diamonds and had converted them to his owrn use.
    The plaintiff replied, and it appeared, that before the making of the said tender and demand an action had been commenced against the plaintiff by a third person who claimed to be the owner of a portion of the diamonds to recover them, and that the present defendant had been notified of that action and been made a party thereto.

      Held, that the tender was ineffective as it was not unconditional and as the money was not paid into court.
    That the facts showed no conversion of the diamonds by the plaintiff and that the counter-claim could not be sustained.
    Appeal from a judgment, entered upon a verdict directed by the court, and from an order denying a motion for new trial made upon the minutes of the justice before whom the action was tried.

      A. R. Dyett, for the appellant.

      W. J. Ritok, for the respondent
   Davis, P. J.:

This action was brought upon a promissory note. The note was admitted by the answer, but it was alleged, by way of defense, that the amount of the note with interest and costs had been tendered to the plaintiff after suit brought, and by way of counter-claim that certain diamonds had been pledged by the defendant to the plaintiff as collateral to the payment of the note, and that on the 20th of January, 1880, after the action was commenced, the defendant had tendered to the plaintiff the full amount due on the note with interest and costs, and demanded a return of the diamonds; that the plaintiff refused to accept the tender and return the diamonds but -had converted them to his own use to the defendant’s damage, for which judgment is demanded. The plaintiff replied admitting the making of the pledge, and setting up that before the offer of payment and demand of the return of the diamonds an action had been commenced against him by a third party for a portion of the diamonds, claiming them as her property, and that the defendant in this action was notified of that action and had become a party thereto, and that the plaintiff at the time of the alleged tender had offered to return to the defendant the jewelry for which suit had not been brought upon payment of the note, hut defendant had refused to accept such portion and to make payment. These facts were sufficiently proved on the trial, and it was proved that the action brought by the third party for a portion of the diamonds, to which both plaintiff and defendant in this action are parties, is still pending undetermined.

Upon this state of facts the court below directed a verdict for the plaintiff for the amount of the note. So far. as the question of tender as a defense is concerned the ruling of the court is undoubtedly correct. No unconditional tender was made, and no money tendered was afterwards paid into court for the purpose of keeping the tender in force in accordance with the provisions of section 732 of the Code of Civil Procedure. A tender to constitute a defense must be unconditional. (Brooklyn Bank v. De Grauw, 23 Wend., 342; Wood v. Hitchcock, 20 id., 47; Roosevelt v. Bull's Head Bank, 45 Barb., 579.) If accompanied with a demand for a receipt or satisfaction piece, or indeed anything more than the production and delivery of the instrument, payment of which is tendered (see Wilder v. Seelye, 8 Barb., 408), it is not sufficient as a defense upon the sole ground of tender made.

But in this case the offer of payment was not made for the purpose of a defense on the ground of tender. It was made accompanied with a demand of the return of the diamonds pledged, for the purpose, if the return were not made, of establishing a conversion of the pledge so that a counter claim of the value of the property converted could be set up and recovered in this action. We think the defense of counter-claim, if properly established, can be interposed in such a case as this, where the action is brought to recover the money, for the payment of which the pledge alleged to have been converted was made as collateral. This could have been done by way of recoupment under the old practice (Stearns v Marsh, 4 Denio, 227); and it can now be done under the Code by way of counter-claim, because the rights of action spring out of a single transaction.

The only question, therefore, in this case is whether, upon the facts proved, the defendant succeeded in showing such a conversion as gave him a right to counter-claim the damages demanded by his answer. Upon the facts that appeared on the trial we think he failed to show such a conversion. He came in to make his offer and demand some time after the action was commenced. Prior thereto the plaintiff had been sued by another person for a portion of the property pledged. The defendant had pledged the property to plaintiff as his own. The pledge was accompanied, of course, with an implied warranty of title. In the action brought by the third party against the present plaintiff that title was in dispute, and as the defendant in this action was made a party defendant to that, the question of the title was,“of course, at issue in that action. Under such a state of facts there was, we think, no conversion by the plaintiff. He offered as it appears, on payment of the note, interest and costs, all the property pledged except that portion for which the action was pending; and this, we think, under the circumstances was all he was bound to do. To deliver the whole property to the present defendant would have been a conversion as against the other claimant if she could establish that she had title to the portion she had sued for. But as the present defendant as well as the plaintiff was impleaded in the action in which the question of title was to be tried, we think the court below was correct in holding that under such circumstances no such conversion was shown as entitled the defendant to counter-claim the value of the property pledged. He should have received the portion of the property pledged which was offered to be returned, and paid the amount of the note, interest and costs, which would have disposed of the present action. But standing in his position as guarantor of the title to the plaintiff as pledgee, and knowing of the pendency of the action in which he was bound to defend that title, he could not, we think, by a simple demand put the present plaintiff in the position of a wrong-doer in converting the property for which the other action was pending.

As the case was presented to the learned judge at circuit we think his determination was right and that the judgment and order should be affirmed.

Beady, J., concurred.

Present — Davis, P. J., Beady and Ingalls, JJ.

Judgment and order affirmed.


author: Bkady, P. J.:

text:
    In the Matter of the Opening of BOSTON ROAD.

      Damages for the taking of land by a rail/road— review of the judgment of the commissioners on appeal — not rev&i'sed on the ground that they have erred in their judgment as to value. .

    As, in determining tlie damages to be awarded to the owners of land taken for the purpose of a railroad, the commissioners have the right to decide not only upon the evidence laid before them but also upon their own view of the premises; and as therefore all the evidence cannot be brought before an appellate court, it is impossible for that court to determine whether, upon all the facts existing before them, the judgment of the commissioners was right or wrong.

      An award of the commissioners will not be vacated on the ground that they have been guilty of an error of judgment in valuing the property taken, unless the sum allowed be grossly inadequate and unequal as compared with other valuations, or unless some wrong principle was adopted in determining it.
    Appeals by Harford B. Kirk, Charlotte S. Garrigue'and Thomas Minford from an order made at a Special Term confirming the report of commissioners of estimate and assessment.

      John O. Shaw, for the appellant Kirk.

      Brown ds Westoott, for the appellant Garrigue.

      Meyer Butzel, for the appellant Minford.

      W. Ü. Whitney, for the respondents the Mayor of New York and Commissioners of Estimate and Assessment.
   Bkady, P. J.:

These appeals may be disposed of together for the reason that the rule by which the conduct of the commissioners is to be considered and approved, or disapproved, applies to the case of each appellant. In other words, the principles involved are precisely the same. Mr. Kirk objects to the small amount allowed him for the injury to his building and for the damages occasioned to it by the line of the improvement. Mrs. Garrigue objects to the amount allowed for damages to her house. Mr. Minford objects to the amount allowed him for the injury to the wall extending along the line of his premises.

In disposing of these various objections the learned justice presiding at the Special Term said, substantially, that when commissioners not only have the right to decide on the evidence before them, but on their own view of the premises in' addition, it seemed to him that there was nothing in the case on which the report could be disturbed; and that, although he might have awarded more, he could not determine that the report was against the evidence.

The difficulty in correcting errors of the kind asserted arises from the peculiar character of the statute under which the proceeding is taken, and the power that is vested in the commissioners as interpreted by a series of decisions which have been guides for a number of years. In the case of William and Anthony Streets (reported in 19 Wend., 694) the court said in reference to the commissioners: “ The evidence upon which they form conclusions may be put upon paper and submitted to the court for consideration; but it is not so, or, at most, only to a very limited extent, in relation to the proceedings of these commissioners. They are selected not only with reference to their integrity and general capacity for business, but on account of the knowledge which they are supposed to possess concerning the particular duty which they are appointed to discharge. Such information as they have in relation to the value of property taken and the probable effect of the improvement upon other property in the same neighborhood, in whatever way the information may have been obtained, they are at liberty to use.” And again: “ The very first thing which is required of them by law, after taking the oath of office, is to view the premises affected by the improvement. (Sec. 178.) They are thus to acquire information, and that, too, of the most important character, which there are no means of bringing before this court; and beyond this I entertain no doubt that the commissioners may take the opinion of others, in whose integrity and judgment they have confidence, without swearing them as witnesses;” and, further, “they may converse with all classes of men concerning the business in hand, and collect information in all ways which a prudent man usually takes to satisfy his own mind concerning matters of the like kind where his own interests are involved in the inquiry. The commissioners must exercise their own judgment at the last, but they must first seek light from other minds the better to enable themselves to arrive at just conclusions. When the original jurisdiction is exercised in this manner it is impossible that there should be anything like a regular judicial review.” And again: “For ought that we can know the judgment expressed by the commissioners upon questions of value may combine the opinions of a hundred men, who are in all respects as well qualified to form just conclusions as those who make opposing affidavits.” And again: “If .in any case they take testimony of witnesses in relation to value it is but an item in the account which may go to qualify but cannot control their own opinion.” “ How, then, is it possible,” said the court, “ that we can disturb the report upon mere questions of value on the single ground that five, ten, or even twenty reputable men have sworn to opinions at variance with the judgment of the commissioners ? ” •

The same doctrine is enunciated in the Troy and Boston Railroad Company v. Lee (13 Barb., 171), and, also, In the Matter of the Commissioners of Central Park (51 id., 277), where there was evidence showing that the commissioners had made an award to an owner that was from $21,000 to $36,000 less than what the witnesses believed to be the actual value of the land taken, yet the court declared that it had no authority to interfere and send the report back.-- Judge INGRAHAM, who was very familiar with all questions arising under the act of 1813, said: “It has been long since settled, and has uniformly been acted upon by this court,. that a mere error of judgment in the valuation' of property taken was not the subject of review on a motion to confirm the report unless the sum allowed was grossly inadequate and unequal as compared with other valuations, or unless some wrong principle was adopted as to the amount allowed.” He said also: “ There are good reason? why such a rule should be enforced. The commissioners have the opportunity of examining the property, of seeing its location and condition, its adaption to use and of inquiry as to value not in the j>ower of the court; and the result of such examinations and inquiries cannot be brought before the court.”

The views thus expressed present the controlling rules by which reports of commissioners in kindred matters shall be considered are in no way limited or altered by the decision In the Matter of the Opening of Sixty-seventh Street (reported in 60 How. Pr., 265). Judge Daniels, in that matter, determined to send back the report upon the ground that the commissioners acted upon an erroneous principle and committed therefore an errror of law, which is very different from the commission of errors of fact. An examination of the papers submitted on these appeals, respectively, although it would certainly justify the conclusion in the abstract upon the testimony contained in them that the awards to each one of the appellants for the damage particularly considered are totally inadequate, yet, as already suggested, the whole testimony is not before the court and we are not enabled to say that the sum allowed was greatly inadequate and unequal as compared with other awards and thus to bring the objection within the exception stated by Ingraham, J., (supra). It is impossible therefore to determine, upon all the elements existing, whether the jndgmént of the commissioners was right or wrong.

Legislation would seem to be necessary to create a system of review which would enable parties believing themselves injured by erroneous awards to present the whole case to the court, whether it would be of any practical value or not, may be questionable, because the view of the premises and such information in regard to them as may be obtained in an informal manner doubtless has very great value. It is not possible, however, under the existing circumstances and rules of law, to interfere with the order of confirmation. It must therefore be affirmed, but we think in each case without costs.

Daniels and Barker, JJ., concurred.

Order affirmed, without costs.


author: Bbadt, P. J.:

text:
    GEORGE T. ALKER, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Boidence — action for salary — when leave of ahsenae without pay may be shown to have been taken under compulsion.

    This action was brought by the plaintiff to recover the salary alleged to be due to him as a clerk of the board of assessors, for the months of July and August, in the years 1877 and 1878. The defense was that in each of those years the plaintiff had written a letter to the tax commissioners, requesting a leave of absence for those months, without pay, and that such request had been granted. The plaintiff offered to show that such letters were written in consequence of a message sent to him by the tax commissioners, to the effect that if he did not write to them such a letter he would be removed, and that the tax commissioners had, in each year, told the chairman of the board of assessors that the plaintiff would have to take these vacations without pay, to enable them to save sufficient money out' of their appropriation to pay men appointed in the department, at the instance of certain members of the legislature who had been looking after the interests of the department at Albany.

      Held, that the court erred in excluding the evidence.

      Appeal by the plaintiff from a judgment, entered on the dismissal of his complaint at the circuit.

      Charles P. Miller, for the appellant.

      D. J. Deem, for the respondent.
   Bbadt, P. J.:

This action was brought to recover the salary to which the plaintiff was entitled, as claimed, for July and August, 1877, and for the same months in the year 1878, as clerk of the board of assessors.

Upon the trial, it appeared on the part of the defendant that on the twenty-seventh of June, in each of the years named, he made a request, in writing, to the tax commissioners for leave to be absent from duty, without pay, during the months of July and August, and that such request was granted by “the board. The plaintiff offered to show in response that these letters were written in consequence of a message sent to him by the tax commissioners, to the effect that if he did not write them he would be removed; and his counsel offered to prove, in this connection, that the tax commissioners had, in each year, told Mr. Asten, who was the chairman of the board of assessors, that the plaintiff would have to take these vacations without pay, to enable them to save sufficient money out •of their appropriation to pay men, appointed in the department at the instance of certain members of the legislature who had been looking after the interests of the department at Albany. This was ■objected to, not, however, as appears from the case, because it was presented in the form of an offer, but generally, and it was excluded. It appears also, in addition to this, that Mr. Asten was asked whether lie had any conversation with the tax commissioners relative to the two months’ vacation given to Mr. Alker, which was excluded. Pie was then asked whether he had any conversation with any tax ■commissioner, which was also excluded. Then it was asked with what commissioner he had the communication, and that was also ■excluded. The plaintiff himself was asked, after the letters were introduced, whether, before writing either of them, he received any notice or communication from the head of the department.* The question was objected to and excluded. He was then asked whether he was informed by any one in .the tax department that if he did not write the letters he would'be removed, which question was excluded upon objection. He was then asked if he wrote the letters of his own free will, and that was excluded upon objection. Exceptions were duly taken to all these rulings thus made adversely to the plaintiff’s case. The plaintiff testified that he performed no services during the months named, it is true, but he said further that he was not permitted to render them, although he was on hand and readv to do his duty.

We do not consider it necessary to make any very extended examination of the question presented in this case. It seems to be very clear that the plaintiff was entitled to prove the asserted fact considered, and to have his case submitted to the jury for their consideration, with reference to the defense set up and the response to it. The threat of the tax commissioners to remove the plaintiff if he should not apply for a vacation to enable them to accomplish the objects stated, the offer to prove which was rejected, was, assuming it to be true, clearly illegal, and cannot be sustained on any principle recognized in jurisprudence. The plaintiff was entitled to his salary as long as he was ready to render the services and was not removed, and the refusal to permit him to render them when he was prepared to do.so was equivalent to a performance.

The commissioners had no power to suspend him for the object in view, it being one which could not be entertained for one moment, because the policy of the law, contemplating as it did a quasi compensation to members of the legislature for services rendered by them in their legislative capacity, forbids it.

The reasons why such a pi’oceeding should not be tolerated could be multiplied if necessary; but the mere statement of the proposition seems to be in itself quite sufficient to suggest the conclusion that the answer of the plaintiff to the alleged defense of the defendant must be triumphant, if sustained.

The evidence offered by the plaintiff should have been received, and the case should have been submitted to the jury for their determination on the issue it created, and it was error therefore to dismiss the complaint.

For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event.

Daniels and B/rker, JJ., concurred.

. Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.:

text:
    EDWARD HILL, Appellant, v. FREDERICK HELLER and HENRY MERZ, Jr., Respondents.

      Contract of sale — when a delivery of aU the goods is a condition precedent to an action for the pnce — what acts of the vendee do not estop him from insisting upon a full performance — Statute of frauds.

    The plaintiff and defendants entered into a contract, whereby the latter agreed to puchase of the former 100 tons of refined alkali, to he shipped to the city of New York by a late January sailing ship, and to belaid on the dock in said city, find to pay therefor one and ninety-five hundreth cents per pound on the first of the following August. In A-pril, 1878, a ship arrived with this quantity of alkali, which was contained in ninety-two casks, thirty-five of them however had been so damaged by water that the defendants were not required to accept them. The defendants offered to accept the remaining fifty-seven casks if the plaintiff would allow them to take the casks to their works, open them and examine their contents. This the plaintiff refused to do.
    In an action brought by the plaintiff to recover the difference between the contract price of the alkali and the price at which he had sold it after the defendants’ refusal to accept it:

      Held, that the defendants, by offering to accept the fifty-seven casks, if allowed an opportunity to examine them, had not waived their right to insist that the failure of the plaintiff to tender the whole amount of alkali required by the contract prevented him from maintaining this action.

      Semble, that as the contract appears not to have been reduced to writing, and as nothing was paid under it, that it was void under the statute of frauds.
    Appeal from a judgment, recovered on the dismissal of the plaintiff’s complaint at the circuit.

      John Notma/n, for the appellant.

      Henry J. Sehenclc, for the respondents.
   Daniels, J.:

The claim made by the plaintiff was for the recovery of the sum of $209.72, with interest, for the difference between the price of fifty-seven casks of alkali, under a contract for its sale made with the defendants, and the amount realized by him upon the sale, after their refusal to receive the property. They had entered into a contract with him for the purchase of 100 tons of refined alkali of the brand of the Jarrow Chemical Company, to be shipped to the city of New York by a late January sailing ship, and to be laid on the dock in said city, for which the defendant promised and agreed to pay the price of one and ninety-five, one-hundredths cents, gold coin of the United States, for each and every pound thereof, on the 1st of August, 1878. This is the statement of the terms of the contract contained in the complaint, and they are not materially changed by anything contained in • the answer, or by the evidence given upon the trial.

The construction which the law places upon such an agreement is that the purchasers are entitled to require a complete tender or delivery of all the property mentioned in it, to subject them to the obligations of receiving it. The contract, in other words, is for one entire subject-matter, which the defendants are .entitled to insist upon receiving in accordance with the terms agreed upon. By this contract but one shipment was either contemplated or provided for, and that was by a late January sailing ship, and all the property was to be laid upon the dock on the arrival of this ship.

After the making of this agreement, and in April, 1878, a ship did arrive with this quality of alkali, laden on board as a portion of her cargo, but it did not exceed in quantity ninety-two casks, and thirty-five of those had been so damaged by water that the defendants were not required to receive them.

The other fifty-seven casks, containing about 69,326 pounds of the alkali, were stated to be in good condition, and were offered to the defendants by way of part performance of the contract. They, however, declined to receive them, for the reason assigned by them that these fifty-seven casks, as well as the remainder of the shipment, had been injured by the water. They then proposed to the plaintiff to take the casks upon their lighters to their own works, located in Newark, where they were to be opened and the good selected from the bad, under the inspection of the plaintiff’s own man, and that the defendant would then return what was damaged and keep what was good.

The plaintiff would not consent to this transfer of the property but insisted that it should be examined at the dock in the city of New York, where it had been placed from the ship, and to that proposal the defendants refused to acceed. The result was that they did not take any portion of this shipment of alkali, and the fifty-seven casks were thereupon placed in the hands of an auctioneer who sold them, in the ordinary course of such sales, resulting in a loss under the contract-price amounting to the sum claimed in this action.

It has been urged in support of the plaintiff’s right to recover this difference that as the defendants placed their refusal to receive the ñfty-seven casks upon the ground that the alkali had all been injured, that they thereby dispensed with a full performance of the contract on the part of the plaintiff. But the mere unfounded objection to the quality or condition of the alkali contained in these casks would not be sufficient to produce such a result. The case in this respect differs from those upon which reliance has been placed in support of the appeal, for in neither has it been held that the'refusal to accept a part of the property required by the terms of the agreement to be delivered, because of an unfounded objection to such part, would entitle the party offering such partial performance to the right to insist upon the property being received if the objection taken to it could be shown to be without foundation. In all the cases where this rule has been applied, a defective offer to perform the entire stipulation relating to the proposed subject-matter was made by the party. (Everett v. Coffin, 6 Wend., 604-608; Underwood v. Farmers, etc., Ins. Co., 57 N. Y., 500-505; Gerrish v. Norris, 9 Cush., 167.)

The quantity offered in this case to the defendants was not of that nature but it was a part only of the entire subject, all of which they were entitled to receive under the terms of the agreement. And it required more than a mere objection on their part, which might' be shown to be unfounded in fact, to obligate them to receive a part instead of thé whole of the property. If the entire 100 tons had been offered and they had objected to it as injured; when in fact that was not the case, the defendants would have been bound to answer for the consequences of their refusal to receive it. But where only a part is included in the offer, upon a contract entitling the other party to a delivery of the entire subject-matter, there such an objection cannot be attended with that result. The defendants had not bound themselves by their agreement to receive a part of the- alkali, and they could not be deprived of their right to insist upon a delivery of all without their assent. And they at no time agreed to receive these fifty-seven casks, but in effect refused to do so, unless they should first be sent to their works for examination and separation. There was no acceptance, inasmuch as the plaintiff declined to assent to this proposal, of any part of this property. And for that reason the loss resulting from the auction sale afterward made of it could not legally be imposed upon .the defendants.

The rule upon this subject is, that “when a plaintiff seeks to enforce a contract by an action, he is not entitled to recover, where its true interpretation depends upon the condition of performance by him, unless performance is shown, or unless actual waiver is proved.” (People's Bank v. Mitchell, 73 N. Y., 406-413, 414.) The least that has been held to create a waiver of this nature, is the acceptance and receipt of some portion of the entire subject of the contract, by the purchaser. That was the fact in Matthews v. Hobby (48 Barb, 167), for there the defendant actually received a part of the property.

The same fact was shown in Perlee v. Beebe (13 Hun, 89), and Avery v. Willson (81 N. Y., 341). And because of the acceptance and receipt by the purchaser of such part of the property, when by the terms of the agreement he was entitled to insist upon the delivery of all at the same time, it was held that he had so far deprived himself of the right to insist upon the performance of the condition on which the agreement depended. And after having done so he could not resist a claim made for the value of the property received by him by way of part performance of the agreement. The plaintiff’s ease falls far short of the essential circumstance upon which these decisions were made to depend, for there was a refusal by the defendants to receive the portion of the property offered to them under this contract.

They were not bound to receive it, and the fact that they assigned an incorrect reason for their refusal, as long as they did in fact refuse, would not deprive them of the right to insist upon a compíete and entire performance of the contract before any right to compensation, or of action whatever, could accrue to the plaintiff. This they did do in effect, for they refused, under the circumstances, to receive the fifty-seven casks of alkali which the plaintiff proposed to deliver. And from such a refusal no waiver of any of their rights, under the agreement, could possibly be deduced.

By the evidence obtained from the plaintiff’s salesman, the contract appeared to have been unwritten. No sum appears to have been paid upon it, and nothing was in fact payable, according to its terms, until the following month of August. And no part of the property mentioned in the agreement had been delivered under it up to and including the time when this controversy arose. And under these circumstances it would seem to be void by the terms of the statute of frauds; and if that was its character, then the rule was stringent requiring the acceptance of some part of the property intended to be sold by the defendants before the contract would become binding upon them. (Swift v. Opdyke, 43 Barb., 274; Caulkins v. Hellman, 47 N. Y., 449.)

The custom, concerning which proof was given, in no manner enlarged the plaintiff’s rights, for the contract itself was clear and distinct in its terms, and could not be varied by proof of a custom. In addition to that it was not shown that the custom was known to the defendants, and by the testimony of one of them, who was the active party in this transaction, it was made to appear that he never had any knowledge of such a custom' as that which was mentioned by other witnesses in the case. In no view was any right of. action made out in favor of the plaintiff. The circumstance that another part of the property was, in the following month of May, received and paid for by the defendants, can have no effect whatever upon what had previously transpired, out of which the present claim of the plaintiff had arisen. The complaint was properly dismissed, and the judgment in the case should be affirmed.

Beadt, P. J., concurred.

Present — Beadt, P. J., and Dajstiels, J.

Judgment affirmed.


author: Daniels, . J.: BRADY, J.:

text:
    In the Matter of the Petition of NATHANIEL L. McCREADY to Vacate an Assessment, etc.

      Assessment — how the amount of the reduction to he made in it is to he determined — 1870, cheap. 883, see. 27.
    The commissioner of public works certified that the entire cost of constructing a sewer in Tenth avenue was $133,838.63. $72,679.66 of this amount was assessed upon the property fronting upon the avenue and $61,158.97 upon the city at large. Upon the hearing of an application, made by one of the property owners assessed, to vacate the assessment against him, it was shown that the reasonable cost of the work was $44,082.48. It was not. claimed that the amount assessed upon the property exceeded one-half of its assessed value for the purposes of taxation. The Special Term, acting under section 27 of chapter 883 of 18 iO, ordered the amount of the assessment to be reduced in the ratio of $44,082.48 to $133,838.63.

      Held, that as the property owner was not injured by the assessment imposed upon the city, and as it was to be presumed that the assessment imposed upon the city was only for the amount by which the cost of the work exceeded one-half of the assessed value of the property benefited, the amount of the applicant’s assessment should, only have been reduced in the ratio of $44,082.48 to $72,679.66.
    Appeal by the Mayor, etc., of the city of New York, from an order made at a Special Term reducing an assessment so far as it was imposed upon the petitioner’s property.
    . J. A. Beall, for the appellant.

      John O. Shaw, for the respondent.
   Daniels, . J.:

The assessment was made for about sixty-seven per cent of the entire cost of the construction of the sewer in Tenth avenue, between One Hundred and Tenth street and Manhattan street. The whole of the expense was certified by the commissioner of public works to be the sum of $133,838.63, and of this amount $12,679.66 was assessed upon the property on the line of the work and $61,158.97 upon the city at large. At the hearing before the Special Term it was shown that the reasonable cost of the work amounted to no more than the sum of $44,082.48, and by the.order made the assessment on the petitioner’s property was reduced practically on the same per centage of division as had been made in certifying and dividing the expenses of the improvement. This was probably in accordance with the literal reading of section 27, chapter 383 of the Laws of 1870. For by that it has been provided that when it shall appear that the expense of a local improvement has been unlawfully increased the assessment for it upon the lands of the aggrieved party may be modified by deducting therefrom such sum as is in the same proportion to such assessment as is-the whole amount of such unlawful increase to the whole amount of the expense of the improvement.

But in the enactment of this section of the statute the legislature seems to have been actuated by the intention to provide by it for the correction of the assessment, so far only as it may be made upon the property of the party aggrieved and applying for correction. It is a statute for his relief, and in its construction it should be extended no further than may appear to be necessary to produce that result.

It was not objected in the case that the proportion of the expenses of the improvement, which was in fact assessed upon the property on the line of the work, exceeded one-half of its assessed value for the purposes of taxation. And in the absence of any allegation of that kind, or of proof showing it to have been the fact, the court is not at liberty to infer that the assessment in any respect exceeded that limit and thereby contravened the policy of the act of 1840. The presumption on the other hand, if a presumption is to be entertained, is that the excess in what was reported as the cost of the work over and above the amount assessed upon the owners of the property was imposed upon the city in order to avoid an over assessment on the property deemed to be benefited by the improvement. If this is the correct view resulting from the statement oontained in the case, then the property on the line of the improvement could legally be charged with the sum actually imposed upon it if that had been the real expenditure required for the performance of the work. In other words, if the whole cost of the work had not exceeded this sum of $72,679.66, it would, all of it, have been lawfully assessed against the property benefited. As to the owners of this property that was the reported cost of the work, for it was all that they had been required to pay for making the improvement, and by the fair construction of the terms of the statute this is the amount to be considered in adjusting the rights and obligations of the property owners according to its provisions. For it was only the difference between this amount and the proper cost of the work by which they could allege themselves to have been aggrieved by means of the assessment. To that extent and no further were they made the subjects of legal injury, and to remedy that was the plain design and object of this provision of the statute.

By the proof which was given, the cost of this work should not have exceeded the sum of $44,082.48, and it was in his proportion of the difference between this amount and the sum of $72,679.66 that had been assessed upon the property of the petitioner, that injustice had been done to him, and he had been legally aggrieved. For by assessing that proportion of this difference, he was, to that extent in theory, rendered liable to pay for what his property had received no real equivalent.

The fact that the city may also have been defrauded by the charge of the additional amount, in no manner tended to produce injury to the applicant, otherwise than as one of the taxpayers of the city. And for any injury he may have sustained in that capacity he had a different remedy, which it was no part of the provision made by this statute to correct. But it was restricted, as already stated, to the power of rectifying the assessment actually made upon his property, so far as it might be made to bear its proportion of any part of an unlawful expenditure for its improvement. If the cost of the work had been limited in the report made of it to the actual expenditure required for its performance, then the property of the petitioner would have been obliged to have borne its full proportion of that entire amount. No part whatever of that could, by any possibility, have been charged upon the city.

It is clear, therefore, that the only legal injury, resulting from the proceeding, to him or his property, is that which was produced by including within the assessment a proportionate part of the difference between the actual and proper cost of the work and this sum of $72,679.66. And to correct the assessment as this act provided that should be done, all that was necessary was to deduct his proportion of this difference from the assessment appearing to have been made. In doing that, his property may be lawfully charged with its proportionate part of the entire value of the improvement as that was shown and found upon the hearing, and in making this correction nothing further than this actual cost was required to be considered, and the difference between that and the gross amount of the assessment made upon the property benefited by the work. A much larger deduction than that was made by the order; for it proceeded upon the whole cost of the work, as that had been reported by the commissioner of public works. That afforded the petitioner the same advantage that would have been derived by him if the whole sum, as reported, of $133,838.63 had been imposed upon the property benefited by the improvement. If that had been the fact, the reduction made by the order would have been proper. For he then woirld have been aggrieved by his proportion of the difference between that sum and what was found to be the proper cost of the work. But as $64,780.16 01 this entire. aggregate was charged upon the city, the petitioner was no more .affected by it, within the legal construction of this statute, than he would have been if no such sum had been for any purpose allowed as a part of the cost of the improvement. As to him, the assessed cost was $72,679.66, while the actual cost was $44,082.48, and by relieving his property of its proportion of the difference between these two amounts, justice will be done to him in the proceeding. The order should accordingly be modified by making that correction and requiring the petitioner to pay iiis full proportion of what appears to have been the actual cost of the work, and as so modified it should be affirmed, without costs of this appeal.

Davis, P. J., concurred.

BRADY, J.:

I concur, but not without doubt. .

Order modified as directed, and affirmed as modified, without costs.


author: Daniels, J.: Beady, J.:

text:
    THE BOARD OF COMMISSIONERS OF EXCISE, Respondent, v. LAWRENCE McGRATH, Appellant.

      Excise law — a person bringing an action in the name of the board should not be required to give security for costs — 3 B. 8. (5th ed.), 945, sec. 31— Gode of Owil Procedure, § 3371.
    Where an action is brought under section 31 of 3 Revised Statutes (5th ed.), 945, authorizing any person to prosecute an action to recover a penalty incurred by a violation of the excise law, where the board of excise shall have omitted to bring an action therefor for the period of ten days after a complaint has been made to it, the person so bringing the action should not be required to give ‘ security for costs.
    Appeal from an order denying a motion made to require the plaintiff to give security for costs.

      James G. Be La Maire, for the appellant.

      WüUam II. Munday, for the respondent.
   Daniels, J.:

This action has been commenced under the provision contained in the excise laws, allowing any other person to prosecute in the name of the board for the recovery of a penalty which may have been incurred by violating any provision of the act, providing that the board itself shall omit to institute a suit to recover such penalty for the period of ten days after a complaint to them, with reasonable proof sustaining it, showing that the act itself has been violated. (2 E. S. [5th ed.], 945, § 31.)

All that this section has required to authorize the .person to prosecute for the recovery of the penalty in the name of the board is that its own provisions shall appear to have been complied with by the person presenting the complaint. When that compliance lias been established the person making the complaint and supplying the proof becomes absolutely entitled to institute the suit for the recovery of the penalty. The legislature has not permitted anything further to be- required from him to authorize him to institute and prosecute the action, and the result would seem to follow that he could not be required to give security fci costs. But even if the case should be held to be within section 3271 of the Code of Civil Procedure the malring of an order requiring security to be given would not be a politic exercise of the discretion vested by that section in the court. Actions of this nature have frequently been brought in the name of the board by such á complainant; but the practice never has been to 'require security for costs under such circumstances. The action, on the contrary, has been considered well and properly brought by a compliance with what has been required by the sectión of the excise laws, to which reference has already been made. The order in the case was right and it should be affirmed, with ten dollars costs besides any disbursements which may have been made upon the appeal. • •

Davis, P. J., concurred.

Beady, J.:

I concur, but with reluctance, in the result. The right given to any person to bring an action is too general and may lead to much litigation and impose burdens on the plaintiffs herein arising from charges that cannot be sustained. The board should in some way be indemnified against costs in all cases not' instituted by it.'

Order affirmed, with ten dollars costs and disbursements.


author: DANIELS, J.-:

text:
    JOSEPH K. WELLS, Respondent, v. DENNIS J. O’CONNOR and ANNIE A. O’CONNOR, Appellants, Impleaded, etc.

      Fraudulent conveyances— statements of the assignor, made after the assignment, are not admissible as against the assignee — right of the assignee to attack the plaintiff’s judgment for fraud.

    In an action by a judgment creditor to set aside as fraudulent a conveyance of real estate made by tbe debtor to bis wife tbrougb a third person, statements of tbe debtor made after tbe execution of tbe deed and tbe delivery of tbe possession of tbe property cannot be received to show tbat be intended by tbe conveyance to defraud bis creditors.
    In such an action the wife may show tbat tbe plaintiff’s judgment was procured by fraud and collusion, and with tbe intent to charge the property of tbe wife with the debt of tbe husband.

      Appeal from a judgment in favor of tbe plaintiff, entered on the trial of this case at a Special Term.

      Stearns db Ames and Walter S. Cowles, for the appellants.

      Henry E. Ernies, for the respondent.
   DANIELS, J.-:

This action was prosecuted by the plaintiff as judgment creditor of Dennis J. O’Connor to set aside as fraudulent two deeds executed on the 6th day of May, 1879. The first was from O’Connor the debtor to John C. Dedican. The other was dated the same day and was executed by Dedican to the defendant Annie A. O’Connor, the wife of Dennis J. O’Connor, the judgment debtor. The consideration mentioned in each deed was the sum of one dollar, and the object of the conveyances was to place the title to the premises mentioned in them, in the wife of the judgment debtor. The judgment was recovered by the plaintiff against him in the Marine Court for the amount of a promissory note made by him, and dated on the 3d day of July, 1879. '

As the conveyances preceded the creation of the indebtedness they were not necessarily fraudulent or inoperative as to the plaintiff. That might very well have been held to have been their character as to creditors whose debts existed at the time when the conveyances were made. But as to future creditors of the debtor that is not the rule, unless the indebtedness is practically a continuation of what the debtor owed at the time when he parted with his property. That such was the nature of this indebtedness was in .no manner shown in the ease. It appeared on the contrary, so far as the evidence tended to exhibit its character, to have been created at or near the time when the note upon which the judgment was recovered was made. As to this particular indebtedness therefore the preceding transfer of these portions of the debtor’s property to his wife could not necessarily be held to have been fraudulent or ineffectual as to any rights of the plaintiff. But to entitle him to avoid it such proof was required as would establish the fact that the debtor parted with this property to avoid the payment of the debts afterwards expected to be contracted by him. (Case v. Phelps, 39 N. Y., 164; Zimmerman v. Schoenfeldt, 3 Hun, 692; Ocean Nat. Bank v. Hodges, 9 id., 161; Savage v. Murphy, 34 N. Y., 508.)

In order to show these conveyances to have been fraudulent within this principle, evidence was given of statements made by the debtor O’Connor subsequent to the time of the execution of the deeds, and after the debt itself had in fact been contracted.

His examination on oath also, in two proceedings taken against him supplementary to execution, was offered in evidence upon the trial and received by the court, and from the statements proven in this manner it was made to appear that the conveyances were probably executed and delivered to avoid the payment of the debtor’s future liabilities. Before this evidence was given it was objected to as improper and incompetent, and exceptions were taken to the rulings of the court under which it was received. •

It did not appear that the debtor remained in' the possession of the property conveyed after the execution and delivery of the deeds. But in his own examination as a witness for the plaintiff upon the trial he stated that he resided at 57 Park street, and that' was not included as a part of the property conveyed to his wife. Under these circumstances the statements by O’Connor after the delivery of the deeds were not competent evidence to impeach or set aside the title acquired through them by his wife. (Gibney v. Marchay, 34 N. Y., 301; Booth v. Swezey, 4 Seld., 276; Tilson v. Terwilliger, 56 N. Y.. 273; Burnham v. Brennan, 74 id., 597; Odgen v. Peters, 15 Barb., 560.)

On the trial of the action it was proposed to be shown, for the purpose of sustaining the title of the wife, that the judgment recovered against her husband by the plaintiff in the Marine Court was the result of collusion between himself and Irwin, to whom the note had been delivered, and for the purpose of charging the property of the wife with the debt. This evidence was excluded by the court and exception was taken to the decision rejecting it. When a judgment is recovered by the creditor in good faith against his debtor, and proceedings are taken on its basis to set aside a fraudulent transfer of the debtor’s property, the party proceeded against is concluded by the judgment as to the fact of the indebtedness. (Candee v. Lord, 2 Comst., 269.)

But that rule does not extend so far as either to include or protect a judgment which may have been recovered collusively or in bad faith.

As' to such a judgment it cannot be made the foundation of proceedings of this nature, so as to preclude the person whose title is intended to be assailed from showing the true character and nature of the proceeding resulting in the judgment. (Mandeville v. Reynolds, 68 N. Y., 529, 545.)

The evidence which was proposed to be given upon the trial for the purpose of impeaching the judgment should, therefore, have been received; and its exclusion under these authorities, and the general rule prevailing upon the subject, was error.

Without the proof of the statements made by the judgment debtor, as to the intentions governing him in the conveyance of this property to his wife, a case for setting aside these deeds was not made out. The evidence, therefore, which was improperly received appears to have been prejudicial to the party resisting its introduction. On both these grounds, therefore, the judgment in the case should be reversed, with costs to the appellant Annie A. O’Oonnor, to abide the event of this action.

Davis, P. J"., and Beady, J., concurred.

Judgment reversed, with costs to the defendants.


author: DaNiels, J.:

text:
    In the Matter of LEWIS S. BURCHARD, an Attorney, etc.

      Attorneys —power of the court to inquire into their right to practice — to revoke their license in a summary proceeding — An attorney is not an officer of the State — Graduates of law schools a/re not subject to the rules of the Court of Appeals — they may apply for admission to the General Term of any department.

    One Burchard, a graduate of the Columbia Law School, applied, under chapter 203 of 1860, and chapter 25 of 1881, for admission to the bar at the May term of the General Term in the First Department. His application was denied on the ground that he had not been in attendance upon the law school for the requisite length of time. In the September following, the General Term in the Second Department acted favorably upon a similar application made to it by another graduate of the same law school. Thereafter Burchard made an application to the General Term of that Department and was admitted. At ' the time of making these applications Burehard was a resident of the First Department.
    This application was made to have the license authorizing him to practice revoked.

      Held, that as Burehard was practicing as an attorney in the First Department his right so to do was the subject of inquiry and examination by the court, and that if he had obtained his license without the authority of law it might he revoked by a summary proceeding of this character.
    That an attorney is an officer of the court and is not a public officer of the State • in such a sense as to be entitled to have his right to the office determined by a legal action.
    That, however irregular it was for Burehard to make the second application to the General Term of the Second Department, and however indecorous it was for that court to entertain it, yet the only question that- could be considered upon this application was whether or not the General Term of the Second Department had jurisdiction to hear and determine’the application made to it That under the existing laws and the Code of Civil Procedure graduates of the Columbia Law School and of the other law schools in the State were subject only to the laws existing on the 31st day of August, 1877.
    'That they were not subject to the rules of the Court of Appeals which require, among other things, that each applicant should apply for admission only to the General Term of the department in which he resides.
    That the General Term in the Second Department had jurisdiction over Burehard’s application, and that this application should accordingly be denied.
    The policy of continuing these exceptions in favor of the law school graduates, considered and condemned.
    ApplicaxioN to revoke a license authorizing tbe person proceeded against to practice as an attorney, etc., in the courts of this State.

      Lewis A. Delafield, in support of application.

      Theodore W. Dwight and George Chase, opposed.
   DaNiels, J.:

Lewis S. Burehard, whose right to practice as an attorney is now in controversy as a graduate of the Columbia Law School, applied for admission at the May term of this court held in the first department. The application was made under the authority of chapter 202 of the Laws of 1860, and chapter 25 of the Laws of 1881. It appeared, in support of his application for admission, that he had been graduated under the authority of the college, but upon evidence taken for the purpose of ascertaining whether he was in fact entitled to admission it appeared that he had not been in attendance upon the law school for the term of eighteen months, and for that reason, after a hearing on which one of his present counsel and a professor in the school was heard in his behalf, the application was rejected. I*n the month of September following a similar application was made in behalf of one of the graduates of the same class to the General Term in Brooklyn, and it was then favorably acted upon and the applicant was admitted and formally licensed. Under that determination Burchard subsequently applied to the same General Term, and was in like manner successful. At both of these periods of time he was a resident of the first department, and by the rules adopted by the Court of Appeals, under the authority of chapter 486 of the Laws of 1871, and chapter 260 of the Laws of 1872, he was required to make his application only to the General Term of the first department, if those rules were applicable to him; and because he did not obtain his license from that tribunal this proceeding has been taken for its revocation.

It was very clearly irregular in any view for him to apply as he did to another co-ordinate tribunal for his admission after his application had been denied by the court in the first department. Such a proceeding is subversive of all regularity in the administration of the laws, and it has a direct tendency to bring the authority of courts of justice into discredit. But it is evident from the papers that the responsibility for this irregularity in no manner rests upon Burchard. He simply availed himself of the decision made in favor of another person in obtaining his license. This, as well as the application of that other person, was made at the instance and suggestion of the professors in the school, and the responsibility for it must accordingly rest upon them, who certainly would be unwilling to bring tliejr institution into discredit by advising their graduates to adopt a similar course in the ordinary practice of their profession. It has been urged by way of excuse that a change was made in the circumstances upon which the second application was presented, but this position is more specious than real, for no additional term of study was shown to extend beyond that which appeared by the papers presented to the General Term of the first department. The case was accordingly the same, in substance, as it was when the first application was considered and rejected, because the term of study-required by the act of 1860 had not then been completed. But still if the application for admission could lawfully be made to the court in the second department, it follows from that circumstance that it had jurisdiction over the subject-matter, and the order made by it could not afterwards be assailed collaterally or the license issued under it be in that manner revoked.

It has been urged that this present proceeding has not been regularly brought to the attention of the court, and also, if it had been, that the right of the party proceeded against to his oiiice could not properly be brought in question in this manner. But, inasmuch as the party is now professedly practicing as an attorney in the first department, his right to do so is the subject of inquiry and examination by this court, and if he has obtained his license without the authority of law it may be revoked by a summary proceeding of this character, for the courts are authorized by such a proceeding to exercise supervision over and regulate the conduct of persons professing to act as its officers. .The power to admit them to practice is certainly broad enough to include that of the revocation of the license, when that may have been obtained without the authority of law. And it is not necessary that this subject should be brought to the notice of the court by a party injuriously affected, but that may be done by any person who can supply the information necessary to justify proper action in the case.

Although attorneys have been classified with the judicial officers of the State it does not follow from that circumstance that they themselves are officers of the State. The provision which has been referred to in support of the point that they are officers of the State and entitled to have their right to their offices tried by a legal action in the ordinary way does not sustain it, for it simply provides for the admission of counselors, solicitors and attorneys by the several courts of law or equity in the State. (1 B. S. [5th ed.], 381.)

There is nothing in this provision by which the proposition can be maintained that, when admitted to practice, the attorney becomes an officer of the State, and if there were, it would have been in conflict with the Constitution which was adopted in 1846. For while that entitled any male citizen of twenty-one- years of age, of good moral character, who possessed the requisite qualifications of learning and ability, to admission to practice, the judges of the court were at the same time: denied the power of appointment to public office. (Const. 1846, art. 6, § 8.)

And this provision, therefore, very clearly contemplated that the admission of a person to practice as an attorney, etc., was not the appointment of him to a public office. The correctness of this conclusion has been further evinced by the act of 1847, in which attorneys, etc., are referred to as officers of the courts. (1 E. S. [5th ed.], 401, § 86.)

■ And that is conformable to the rule of the English courts, under which attorneys are made officers of the respective courts to which they are admitted. (3 Black. Com., 26.)

And no different view was taken of the office in Seymour v. Ellison (2 Cow., 13), where it was considered that an attorney held an office, or public trust, within the meaning of those terms, as they were then contained in the Constitution of the State. The view of the Chancellor in the case of Wood, a report of which has been added by way of a note, was clearly opposed to the position now taken for the purpose of resisting this proceeding. (Id., 29.)

In Hamilton v. Wright (37 N. Y., 502), it was stated by Wood-RUFF, J., that attorneys receiving their authority from the court were deemed its officers. (Id., 503.) And the point was in like manner disposed of in the case of Ex parte Garland (4 Wall, 333, 378). Under this state of the law there can be, therefore, no room for doubt but that an attorney is merely an officer of the courts in which he may be entitled to practice, and for that reason subject to their jurisdiction over him through the means of a summary application. And if a person, professing to practice as such, has received a license in contravention of the authority of the law, this jurisdiction is broad enough to supply tie power of revoking and taking it away from him, without resorting to the formality of a legal action.

At the time when the first application was made by Burchard for admission, the rules adopted by the Court of Appeals had been sanctioned by legislative action, and even though they might have been broader than the law under which they were adopted had authorized its power to be exercised, which, however, is not considered to be a view warranted by the antecedent provisions of the statute, they had become so fixed and established- by succeeding legislation, as to place their authority beyond the reach of doubt or question. (Laws 1876 [vol. 2, ch. 448], §§ 56, 57;- Code Civ. Proe., §§ 56, 57.)

The controlling point, therefore, to be considered is whether this applicant for admission was subject to the restrictions provided by these rules of the Court of Appeals. If he was, then, as he was and still is a resident of the first department, the General Term of that department had exclusive authority to hear and determine his application, and a subsequent renewal of it before the General Term of another department would be entirely unauthorized and its action consequently without jurisdiction. But if the court in the second department was invested with the authority to hear and determine the application, then the fact that it was merely irregular because of the previous hearing and adverse determination of the court in the first department, or the act under which that determination was made was erroneously construed, will not allow the irregularity or the error to be corrected upon the present application. If that court had jurisdiction then its decision as to the right under the law is conclusive, subject only to , its reversal- by a proper appeal. And whether that power existed or not must be determined by the laws which have been rendered applicable to the admission of such a graduate to practice. The diploma of the law school was legal evidence of the facts that he possessed the requisite learning and ability. (Matter of Cooper, 22 N. Y., 67, 88, 89.)

He was not, therefore, a person who could be subjected to an examination upon those subjects under the rules or practice of the court. The action of the authorities of the school itself was rendered sufficient to prevent that, provided the necessary period of attendance had been made to appear in the case. When chapter 486 of the Laws of 1871, under which the rules of the Court of Appeals were adopted, was enacted it was declared in it that it should not be taken or construed “ to affect the provisions of chapter 202 of the Laws of 1860, vesting the Columbia Law School with its authority to issue such a diploma.” And this restraint was afterwards enlarged so as to.include'other law schools in the State as well as the two mentioned in the act of 1860. (Laws 1871 [vol. 1], 1016, ch. 486, § 3; Laws 1872 [vol. 1], 671, ch. 260.) Under these restraining proyisions the act authorizing the Court of Appeals to prescribe rules regulating the admission of persons as attorneys, solicitors and counselors had no application to the graduates of the law school of Columbia College. And as the act was so carefully guarded and restricted in this respect it follows from that circumstance that the rules adopted and established under the authority of its provisions must also, in like manner, be inapplicable to these graduates, for otherwise they would not be unaffected by the act itself as it was declared they should be. As to such graduates, therefore, the rules adopted by thé Court, of Appeals were not applicable and they could not consequently be restricted by force of them in their applications for admission to the General Term of the department in which they resided, as those rules in terms restrained other applicants who were subject to their control.

Before the adoption of the rules authorized by the act of 1871, the Supreme Court had, by its own rules, required applicants for admission to practice to make their application in the district in which they respectively resided. (Buie 2 of' the rales of 1849, 52, 54.)

And this rule was continued in force until the time when the rules of the Court of Appeals were adopted under the act of 1871, but after that the preceding rale of the Supreme Court upon the subject was taken to have been, as it clearly was, superseded, and it was then required that the applicant should only comply with what was prescribed by the rules of the Court of Appeals. And in making that requirement, it was so limited in language as to be applicable only to those persons who were applicants for examination. (Buie 2 of 1875, and Bule 1 of 1881.)

There was no rule of court in existence, therefore, at the time Burchard made his application, which required him as a graduate of this law school, to restrict it to the General Term of the department in which he was a resident. For by force of the exception contained in the statute, as it was amended, under which the rules • of the Court of Appeals were established, they were inapplicable to the graduates of this law school, and the rule of the Supreme Court in force at the time when Burchard made his first and second application for admission, was so framed as to include only the persons who should be applicants for examination. He was not such an applicant, but applied for his admission without examination and upon the authority of his diploma.

By chapter 417 of the Laws of 1877, chapter 202 of the Laws of 1860, was in terms repealed. (Laws, 1877 [vol. 1], 473, § 1, sub. 34.)

But by subdivision 17 of section 8 of this act, the right of a graduate of this and other law schools, to be admitted upon the production of his diploma, when that right became vested, on or before the 1st of April, 1876, was allowed to be made the foundation of a successful application for admission at any time within one year after this act took effect, upon his complying with the existing laws relating to the admission of such a graduate to pracJ tice. And this phrase existing laws,” was declared to designate the statutes of this State remaining unrepealed on the day before the act containing it went into effect. (Id., 477, § 4.) This act took effect on the 1st day of September, 1877, and consequently a graduate of this law school had the right to be admitted within one year after that time, upon complying with the laws as they were in force on the last day of August, 1877. The exception so inserted in the act was made dependent only upon existing laws, and the latter term as it was so used from its ordinary and well-known signification included only such laws as had been enacted by the legislature. A term of similar import was so construed in the unreported case of Atrill v. Rockaway Beach, Company, and as it was employed in this act, it could not be so extended, by construction, as to include the rules of the courts, which cannot be properly designated as laws, even if any were in force which were applicable to a graduate of this school. As this exception was made to the repealing authority of the act of 1877, the application of such a graduate was subordinated only to the statutory laws of the State, and under those laws the application for admission was required to be made at a General Term of the Supreme Court. (1 R. S. [5th ed.]-, 400, § 80.)

This provision of the statute did not restrict the applicant, in making his application, to the General Term of the district in which he should reside, but the authority was general, subject only to the qualification that the application must be made to a Genera] Term of the court. And when the District General Terms were abrogated under the authority of the amendments to the Constitution, and the organization of the Departmental General Terms was provided for, all tbe laws relating to the General Terms, as they had been previously organized within the several judicial districts, were made applicable to the newly-formed courts so far as they were appropriate to that end. (Laws 1870, chap. 408, § 5.) And as the preceding statute already referred to was an appropriate act of legislation for the newly-organized courts, it was extended and applied to them by force of this provision contained in the acts of 1870. And these were the only existing laws which a graduate of this law school was obliged to comply with under the language of the exception already mentioned and incorporated in the act of 1877. Such a graduate was by statute exempt from the operation of the rules of the Court of Appeals, and he was neither in terms nor by implication rendered subject to the rule of the Supreme Court, for it extended only to such persons as were applicants for examination. He was accordingly at liberty to apply for his admission to the General Term of either one of the departments in the State. And since the time of the enactment of these expeptions it has been' continued by other statutes, annually passed, so as to secure the like privilege to all the graduates of this school becoming entitled to admission on or before the 1st of October 1881. The last act upon this subject is chapter 25 of the Laws of 1881, and under its authority the applicant was entitled to the same privilege of admission as was secured to the person graduated by this school on or -before the 1st of April, 1876, by the act of 1877, and that was sufficient to authorize the General Term of the second department to hear and determine his application for admission. It was a court of co-ordinate jurisdiction, and as such, under the statutes of.the State in force at the time and applicable to this subject, it had the authority to hear and determine the application made for the admission of Burchard.

That authority, as it had been created by the laws of the State in force on the last day of August, 1877, and was afterwards extended by succeeding legislation to include the class of which he was a member, vested the General Term to which he last applied with jurisdiction over his application and over himself by the fact of his making it. And while it may have been indecorous in that tribunal to have entertained it, with the knowledge of what had transpired in the disposition of a similar application made in his behalf to the General Term in the first department, it was not deprived of its authority over the case by that circumstance.

The policy of these several enactments by which the exception contained in the act of 1877' has been from time to time repeated, and in that manner brought down to the period in controversy, is certainly very questionable. For this legislation has manifestly been enacted to favor the fortunate class of persons who may be able to secure admission to the legal profession through the easy avenues of the law school, while those who are no so prosperously situated are required to pass their three years of laborious preparation in the office of a practicing attorney.' The discrimination is neither just nor fair, and the restraints, other than those in force before the passage of the act of 1871, should be removed from all alike, or all should uniformly be subjected to the control of the rules of the Court of Appeals. Discriminations of th s nature are not in harmony with the policy of the law, or the institutions of the State. They create invidious distinctions, and are justly liable to be regarded as harsh and uncharitable to pe sous who are incapable of availing themselves of the privileges secured by such laws. Upon a preceding occasion this subject was presented to this court for its consideration, and in order to avoid the force of the objection which prevented the success of the application made by Burchard to the General Term of the first department, the distinguished professor of this school pledged himself in writing to “ make no further application to the legislature for special legislation in favor of our graduates, so as to exempt them from the application of general laws governing the admission of aoiorneys or counselors, but shall, on the other hand, discountenance such legislation.”

This assurance was given in a letoer of the date of May 20,1879, and in reliance upon it the graduates, who were then applicants for admission, were accorded that admission. But notwithstanding this fact the law, which has been the subjeét of consideration, has been repeated, through the enactments of the two succeeding legislatures. It is true that the learned profe jsor has disclaimed all action upon his part tending to the production of such a result, but if the spirit of this assurance had been observed, and such legislation had been actually discountenanced by the school authorities, it is difficult to discover how such enactments could have secured the sanction of the legislature. Still, however, even if they have resulted from a failure to observe and carry out this assurance, they are nevertheless the laws of this State, and it is the duty of this court to observe and carry into effect their requirements. The result of that obligation is, that the action which has been taken by the General Term of the second department in favor of Burchard cannot be set aside or disregarded.

It was the determination of the court having jurisdiction over the party and the subject-matter, and although it was inconsistent with the decision made by this court upon the same facts, it is still entitled to be maintained. The license issued to Burchard cannot bo revoked or set aside by this court, and the application now made n ist accordingly be 'denied.

Beady, J., concurred; Davis, P. J., taking no part.

Application denied.


author: Ingalls, J.:

text:
    NICHOLAS DE PEYSTER, as Executor, etc., of GEORGE DE PEYSTER, Deceased, Appellant, v. HENRY W. T. MALI and OTHERS, RESPONDENTS.

      City of New York — cma/rd for land taken for the purposes of a street — action by one claiming to he entitled to it against one to whom it was made — what must be shown to CMthoi'we a recovery —1813, chap. 86, sec. 184.
    In 1873 awards were made to the defendants for land taken for the purpose of constructing one of the avenues passing through Riverside park in the city of New York. 'The land so taken formed a part of what was known as the Bloomingdale road, which had been used as a public highway for many years.
    This action was brought by the plaintiff to recover the awards so paid to the defendants, upon the ground that the plaintiff’s testator, and not the defendants, was the owner of the fee of the land so taken, and the court, upon the trial of the action, found that such was the fact.

      Held, that to entitle a party claiming an award to recover it, in an action brought under section 184 of chapter 86 of 1813, from the person to whom it had been paid, it was not sufficient to show that the person receiving the award had no right to take it, hut it must he established that the plaintiff was the person to whom it of right belonged, and to whom it ought to have been paid.
    That, as in this case, the plaintiff had a mere nominal right or interest in the land taken for the avenue, for the taking of which by the city he was not entitled to any substantial award, he could not maintain this action.
    Where land is conveyed by a deed bounding it “by the northerly side "of a highway, the grantee takes no title to the land lying in the road on the southerly side of the premises conveyed.
    Appeal by the plaintiff from a judgment dismissing the complaint herein, entered upon the trial of the action by the court with a jury.

      James A. Deering, for the appellant.

      FrcmTclin Bartlett, for the respondents.
   Ingalls, J.:

The question to be decided upon ' this appeal is not simply, whether Henry W. T. Mali,- or his heirs, were legally entitled to the money received under the two awards of damages, and paid by the city, and which is sought to be recovered by the plaintiff in this action. The question is rather whether the plaintiff has established a right of action based upon the title of George De Peyster, his testator, by which such damages could have been claimed by him as against the city, for taking the land in question. If no such title or right of action has been proved, it necessarily follows that no such recovery can be had against the defendants, even though they have been successful in securing money to which they may not have been legally entitled as against the city. The theory of this action is that the defendants have received and refused to pay over money which in equity and good conscience belongs to the plaintiff. The determination of this question depends upon whether it has been established by the facts herein, that George De Peyster was entitled to such damages as against the city. We have carefully examined the findings of- fact, in the light of the evidence upon which they are based, and have also considered the opinion of the learned judge who decided the cause, which shows that he has given the matter a thorough investigation; and we are satisfied with the result, and the reasoning by which it was attained, as shown by such opinion. Without further discussing the case we prefer to adopt the opinion referred to as furnishing sufficient reason for affirming the judgment, with costs. The opinion is as follows:

Daniels, J.: This action is brought to recover the sum of $6,634, together with interest upon it from the 21st of-March, 1873, being tbe amount of awards made for land taken for the purpose of constructing one of the avenues passing through Riverside park in the city of New York. The land is situated on One Hundred and Eleventh and One Hundred and Thirteenth street, and when it was taken formed a part of what was known as Bloomingdale road. It was that part of the road running through the two blocks between One Hundred and Eleventh and One Hundred and Thirteenth streets. The land upon each side of this portion of the road was at one time owned hy Nicholas De Peyster. Before he acquired it, and whilst he owned it, the road existed substantially as it did when at this point it was made a part of what has since been called Riverside drive, which now constitutes one of the avenues of'the city. It appears by the evidence that the Bloomingdale road, about the year 1703, extended northerly to a point near a bam, known as that of Nicholas De Peyster, situated where the dwelling-house of Abram Hoogeland formerly stood. Precisely where this barn and dwelling-house were situated does not appear, but they were probably in the vicinity of Ono Hundred and Sixteenth street. From the time the road was opened, down to the time when it was made a portion of the enlarged avenue, it was maintained and used as a public highway. How the right to it was originally acquired has not been made to appear, but it probably was' derived from the assent or acquiescence of the neighboring inhabitants in its use and maintenance. This of itself was sufficient, where it had extended through so lonac a period of time, to establish it as a public highway. The land within the limits of the road in that manner became subjected to a permanent easement in favor of the public, and while that existed, even though the title to it remained in the adjacent owners, it was of only a nominal value as long as it was subjected to this right in the public to use it as a highway. In that respect, the value of the title or all the fee in the land itself was no greater than it has been held to be where the owner of the adjacent property has conveyed it by making one of its boundaries the line of a proposed highway. In the latter class of cases it has been repeatedly held, where land has been so appropriated to the uses of a street, that the fee in it afterwards is of no greater value than that of a mere nominal sum. In other words, that it can be of no substantial benefit to T,he person who may own it, for the reason that the right to nse the land as a street or highway has been created. (Matter of Lewis Street, 2 Wend., 472; Wyman v. Mayor, 11 id., 487; Matter of Furman Street, 17 id., 651; Matter of Thirty-second Street, 19 id., 128; People v. Lambier, 5 Denio, 9-19; Matter of Brooklyn, 73 N. Y., 179, 185.) The foundation of this principle is that the owner of the fee, after it has been subjected to the uses of a street or highway, can make no beneficial use of it for himself, and for that reason, when this naked fee itself has been afterwards divested by means of legal proceedings, it may be done by paying him a nominal sum merely, as the full measure of the compensation he is entitled to receive for the loss of such a title. The same principle applies to a street or highway of the nature of that now in controversy, because it is subjected to the same servitude, and changing it nominally from a country road to-an avenue of the city imposes no new burden upon it. The right of the public over it still remains the same, and that is to use it for all the purposes of passing and repassing over it. That may be greater or less, as the convenience of the public may require, and it must necessarily increase with the increase of the neighboring population. The fact that the road was widened in no matter enlarged the servitude to which the land, previously within its limits, had been subjected. That would, at the most, only increase its convenient use by the public. As this land was situated at the time when the road , was changed into the enlarged avenue, the naked title to it, or the fee in it, was therefore of no substantial value.

It also appeared that while Nicholas De Peyster was the owner of the land over which this portion of the Bloomingdale road extended, and on- or about the 7th of*-April, 1795, he executed a release to the mayor, etc., of the city of New York, releasing his right to the land thfough his farm, within the bounds of this highway, as a four-rod road, and providing for its extension northerly from the point to which it had previously been maintained. The nature of the release which was then executed, justifies the construction that it was designed not only to provide for the extension of the road, but also to regulate that portion of it which had previously existed in this vicinity. And for the purpose of authorizing that to be done, the release was' also executed by several other adjacent owners of the soil. The object of it was to have the road maintained as a four-rod road, not only through the lands of Nicholas De Peyster, but also through those of persons owning lands both to the south and to the north of that owned by him, and to warrant the public authorities in making that contemplated improvement. The persons executing the release, including De Peyster, for themselves, their heirs and assignees, did in terms, grant, release and forever quit-claim unto the mayor, etc., and their successors, the parcels of their respective lands, or so much thereof as might be necessary for the said road of the breadth of four rods; to have and to hold such lands for a public road with the appurtenances to and for the sole and only use of a public road forever. It has been claimed, because'of the fact that measures-were taken only for the continuation of the road northerly from the point where it terminated at the barn of Nicholas De Peyster, that the release was designed to affect his property, only so far as it was situated north of that point. But the language of the release will not justify such a restricted construction of its terms. It appears by that that the object of the parties was not only to secure an extension of the road itself, in a northerly direction, but in addition to that, its regulation so far as it had been previously maintained and used through the land of the individuals by whom the release was executed. It may be that the execution of this release imposed no greater burden on the property- over which the road had existed, than that to which it had been previously subjected, but it certainly had the effect of rendering that entire, distinct and definite in its character, by subjecting the four rods of land, intended to be within the bounds of the road, to a perpetual servitude or easement in favor of the public. It is clear from the use of the land constituting the road, and the effect which must be given to this release, that De Peyster himself retained no such available interest to the title to the land, in the road as would justify a substantial award for it, when it might afterwards, to perpetuate its use, be taken and vested in the public.

At the time of his decease, he left a will by which he devised this portion of his property to his son, George De Peyster, and it was conceded that he acquired by means of that devise whatever interest Nicholas De Peyster previously had in this portion of his estate. The son, George De Peyster, also left a will at the time of his decease by which whatever interest he had in the property now in controversy passed to the plaintiff in this action. During the lifetime of George De Peyster he conveyed four acres and a-half of his estate lying westerly of the Bloomingdale road to Silas Tobias, and it is under the title created by that conveyance that Henry W. T. Mali and his heirs claimed the property by which the awards in controversy were made. It appears, however, by the deed which was given to Tobias that the easterly line of the land conveyed to him was bounded by the northerly side of the Bloomingdale road; and for that reason, as instruments of this nature have been construed in this State, no title to the land forming part of the road itself passed by the deed. (Jackson v. Hathaway, 15 Johns., 447; Mott v. Mott, 68 N. Y., 246.) These authorities, and those referred to in the opinions, require this deed to be so construed as to limit the right to the property conveyed to the westerly line of the road, for the reason that it was bounded upon the side and not, in general terms, upon or along the road itself. An extended array of authorities has'been cited from the reports of other States, upon which it has been claimed that a boundary like this upon the side of a highway should extend the title of the grantee to the center of the land used as the highway. But it is not necessary to consider whether they should be attended with that effect or not, because the rule of construction seems to have been settled in this State the other way. It is quite evident, therefore, that the persons who received awards in controversy by means of the title derived under the conveyance to Tobias had no right to them, for the reason that they had no interest whatever in the title to the land included within the bounds of the highway; and any possible right or interest they might have in the enjoyment of the highway itself was in no sense restricted or diminished by its incorporation within the bounds of the Riverside drive. But the fact that they were not entitled to be awarded the sums of money which were received by them is not sufficient to entitle the plaintiff to recover the money from them, for -the reason already stated, that neither himself nor the testator had any such-right or interest in the lands included within the bounds of the highway as entitled them to any substantial award for it, when its formal fee was taken under the law and vested in the city. While that title was property it was not such as had a substantial value, and for that reason it could be taken and held for the purposes of the same public uses upon payment of a mere nominal consideration.

It is only when the .party claiming the awards is the person to whom they shall, of right belong and ought to have been paid ; that he can recover them, under the terms of the statute, from the person or persons who have received them. (2 Rev. Laws, 1813, § 184, •p. 419.) It is not sufficient to maintain such an action that the person receiving the money had no right to take it, but it must be established beyond that, as a matter of fact, that the plaintiff was the individual to whom it of right belonged and ought" to have been paid; and he certainly cannot be such a person when it appears that he had only a nominal interest in the property taken, and for which the award was made. It has been urged, however, that when this new avenue called the Riverside drive was established that the Bloomingdale road was abandoned and closed, and as a result of that circumstance that the plaintiff’s interest in-the land became valuable and the proper subject of substantial compensation when the fee.to it was vested by means of the proceedings taken for opening and improving the new avenue.

This position has been advanced under what has been relied upon as the effect of chapter 697 of the Laws of 1867. That provided that the board of commissioners of the Central park should have power to lay out and establish streets, avenues, roads, squares or places within that part of the city of New York which is bounded northerly by the southerly side of One Hundred and .Fifty-fifth street, easterly by the westerly side of Eighth avenue, southerly by the southerly side of Fifty-ninth street, and westerly by the Hudson river, and within 350 feet in width, surrounding the Central park. In the exercise of their authority they were empowered, not only to open and widen streets and avenues, but to close and abandon any of those at that time in use. They were required to file two similar maps or plans, showing the streets which they should lay out or retain, and those which were not shown or retained on such maps were, from and after the time of filing them, to cease to be or remain public streets, avenues, roads, squares or places. (Laws 1867, ch. 697 [vol. 2], 1748-1750.) The commissionerspeifformed the duties assigned to them by these provisions of the statute, and on the maps filed by them did not in terms retain this portion of the Bloomingdale road. It was, however, included within the bounds •of the new avenue which they laid out, and it from that time continued to.i'orm a portion of that avenue. In the locality in controversy, the avenue was created by adding additional lands upon each side of that then known and maintained as the Bloomingdale road. The road, therefore, was neither abandoned nor closed, but the lines of the new avenue, within which this portion of it was included, • as they were laid out upon the commissioners’ maps, clearly showed it to have been retained as a part of that avenue. And for that reason the title to that portion of the land which was comprised within the bounds of the Bloomingdale road still remained subject to the same easement over it as that which had previously existed. No change in this respect was made by the proceedings which were taken under the provisions of this statute, and no interest was created in the owner of the naked fee entitling him to any substantial award for the appropriation of the old road and the construction-of the new-avenue. The bed of the old road was retained by the action of the commissioners and by force of the statute, for the same public use as that to which it had previously been devoted, and for that reason the value of the owner’s title was in no respect changed." (Matter of Commissioners of Central Park, 54 How., 313; People ex rel. Roberts v. Aston, MS. opinion Barrett, J., First Department, General Term, April, 1880), "What has taken place under the act of 1867, has not sustained the plaintiff’s right t-o the awards now in controversy. Neither before that nor since then has he been the person to whom the awards of right belonged, or ought to have been paid, as those phrases were employed in the act of 1813, and because of that defect of right, no action can be maintained by him for the recovery ■of the moneys which were received under the awards by the defendants in this case, even though they themselves, or the persons through whom the moneys were derived, had no right to demand or receive them. The consequence is that this action cannot be sustained, and judgment must be directed in favor of the defendants.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.