author: Daniels, J.: Davis, P. J.:

text:
    In the Matter of the Petition of AUGUST BELMONT to Vacate an Assessment, etc.

      Assessment — when ordinance to “pave” will authorize change of grade— “paving” and “repaying” — meaning of.

    On October 5, 1872, a resolution, passed by three-fourths of each board of the common council of New York, was approved by the mayor, by which the commissioner of public works was directed to have the Telford MacAdam roadway pavement laid in Seventy-second street from Eighth avenue to the North river, the work to be done by day’s work, or in such other manner as the commissioner might deem expedient. The resolution was never published in the official city papers. In laying the pavement the grade of the street between Eighth and Ninth avenues was lowered so as to make it to conform to the grade of the former avenue; the expenses of which, as well as that of resetting the curb and gutter stones, were included in the assessment. No petition of the property owners asking for, or resolution of the common council in terms directing, such change of grade, was shown. An assessment for laying curb and gutter-stones in Seventy-second street had already been confirmed and paid.
    Chapter 593 of 1870, passed May 3, 1870, changing the grade of Eighth avenue, authorized the commissioner of public works to change the grade of any street intersecting Eighth avenue between Fifty-ninth street and One Hundred and Twenty-second street, so as to conform to the new grade of the avenue, within six months from the passage of the act. The change, in this case, was made before November 3, 1870. This application was made to vacate the assessment.

      Jlelcl, that the act of 1870, authorized the grade of the street to be changed, and that no petition of property owners therefor, and no resolution of the common council or publication thereof was necessary; that the power thus conferred to change the grade necessarily authorized the curb and gutter stones to be reset. That the resolution of the common council directing the pavement of a street, the carriage way of which had never been paved, impliedly required and authorized the commissioner to reduce the street to the grade established by law, and to reset the ewb and gutter stones already placed thereon.
    That, as the resolution 5n un ostión provided for the laying of a MacAdam pavement upon a street wloor. had never been paved upon its carriageway in any form before, and as rbv owing to the change of grade by the legislature, could not b". properly done without resetting the curb and gutters, this assessment was rherc/crp, not within the exception as to repaving streets contained in chan' e1* 313 of 187-1, and the failure to give notice did not invalidate the asse°smep"».
    That he assessment should be confirmed.

      8em6le, that the resetting of curb and gutter-stones is included in the term “paving” and “repaving” as used in chapter 580 of 1873, and chapter 313 of 1874. (Per Daniels, J.; Davis, P. J., contra.)

    Appeal by tbe mayor, etc., of tbe city of New York from anorder vacating an assessment made upon tlie petitioner’s property, for grading and paving Seventy-second street, in tbe city of New York, and taking up and resetting tbe curbing and guttering between Ligktb avenue and tbe Hudson river.
    Tbe abF' ssment in question was authorized by a resolution of tbe common council of tbe city of New York, adopted by a vote of three-fourths of all the members elected to each board, and was approved October 5, 1872, which resolution was as follows :
    Resolved, That the commissioner of public works be, and he is hereby authorized, to have the Telford MacAdam roadway pavement laid in Seventy-second street, from the east side of Eighth avenue to the North river, in accordance with the specifications for said ■pavement by which the Boulevard and other avenues are so paved, the work to be done by day’s work, or in such manner as the- commissioner of public works may deem expedient and for the best interest of the city and the property owners, the curb and gutter, where necessary, to be set or reset under the direction of the commissioner of public works, and that the accompanying ordinance therefor be adopted.
    Adopted by board of aldermen, September 9, 1872; adopted by board of assistant aldermen, October 3, 1872; three-fourths of all the members elected to each board voting in favor thereof.
    Approved by the mayor, October 5,1872.
    F. J. TWOMEY,

      Clerk of Common Council.

    This resolution was not, as required by the city charter (chapter 137, of 1870), published in the newspapers selected under section 1, chapter 571 of the Laws of 1871. By chapter 313 of 1871, it is provided that no assessment for local improvements shall x be set aside for irregularity or technical defect except in cases of fraud and of repaving streets, upon property upon which an assessment has once been paid for paving the said street. By chapter 593 of 1870, passed May .3, 1870, the grade of Eighth avenue had been changed, and the commissioner of public works'was thereby authorized to change the grade of any street intersecting Eighth avenue between Fifty-ninth street and One Hundred and Twenty-second street so as to conform to the new grade of the avenue, within six months from the passage of the act. The work for which this assessment was laid, which included the change of grade in Seventy-second street, was done on November 2, 1870. An assessment for laying curb and gutter-stones in Seventy-second street had already, before this time, been confirmed and paid. It was necessary, however,'in this case, owing to the change of grade, to reset the curb and gutter-stones, and the expense thereof, as well as of the change of grade was included in this assessment.
    No consent of property owners asking for this change of grade was filed under section 5, chapter 697 of 1867, nor did the resolution of the common council in terms direct such change of grade.

      J. A. Beall, for the mayor, etc., appellant.
    The excavation done was required for the purpose of laying the pavement, and the commissioner had ample authority under the resolution and ordinance, to do such work as was necessary to be done in order to accomplish that end. (2 Dillon on Corporations, 736; SoJienley v. The Commonwealth, 36 Penn. St., 60; MeEFama/ra v. Estes, 22 Iowa, 246 ; State v. Coimeil of Elizabeth, 1 Yroom, 365; Williams v. The Mayor, 2 Mich., 560.)

      P. A. PFargous, for petitioner, respondent.
    The assessment is within the exception of section 7, chapter 580, Laws of 1872, and chapter 313, Laws 1874, as there is included an assessment for recurbing and reguttering said street on the lots of the ¡petitioner. A recurbing and reguttering is a repavement. (Be Phillips, 60 N. Y., 16; Re Keteltas, 62 id., 624; Re Burke, id., 224; Re Astor, 53 N. Y., 617.)

       See ante, pp. 478, 490.

   Daniels, J.:

The work for the expenses of which the assessment was made, was authorized by a resolution of the common council, adopted by a vote of three-fourths of all the members elected to each board.

It was approved on the 5th of October, 1872, and authorized the commissioner of public works to have the Telford MacAdam roadway, laid from the east side of Eighth avenue to ihe North river, in accordance with specifications for such pavement by which the Boulevard and other avenues were paved, and it directed' the work to be done by the day. There was no illegality in this direction inasmuch as the ordinance, or resolution, authorizing it was adopted by the three-fourths vote given for it in each board of the common council. (Vol. 1, Laws of 1870, 391, chap. 137, § 104.)

It was shown that the resolution had not been published in the newspaper selected for such purposes under the authority and requirement of section 1, chapter 574 of the Laws of 1871. And for that reason it has been urged that it conferred no legal authority for making the improvement^ because the curbing and guttering had been previously set upon the street, and the expenses of that work assessed upon and paid for by the owner of the property now affected. The evidence given in support of the application, resulting in the making of the order appealed from, established those facts, and also showed that the curbing and guttering had been reset in constructing the pavement provided for, and the expenses of that work included in the assessment which was the subject of complaint. In, the Matter of Burmeister (16 N. Y. Sup. Court Repts., 613) the point was considered whether the work of curbing and guttering constituted a portion of the pavement in such a sense as to entitle the owner of property assessed for the expenses of doing it a second time, to relief under chapters 312 and 313, of the Laws of 1874. A very decided intimation wa<? given that it was not, but as the point was not essential to the disposition of the appeal in that case, it was not decided.

In particularizing the different descriptions of pavements, a distinction will be clearly indicated between a pavement of the carriageway, and the curbing and guttering of a street, and the flagging of the walks used only by pedestrians. But the act under which this application was made, attempted to give no such definition or distinction. It used the term in its broadest and most comprehensive sense and allowed the assessment for repaving any street, or public place, to be vacated for the want of publication of the resolutions or ordinance, as that had been required by law. In that sense it seems to include every sjoecies and descrij)tion of pavement, appropriate for any part of the streets and public places of the city. And the term was so defined by the Court of Appeals in the case of Phillips (60 N. Y., 16). The propriety of that decision was questioned upon the occasion already referred to, but it was reaffirmed in the case of Burke (62 N. Y., 224, 229), and •the point considered to have been settled by the preceding determination ; to the same effect see, also, Williams v. Mayor, etc. (2 Mich., 500). And that certainly should -be accepted as controlling-in the disposition of this case, if it were strictly essential to its determination. Fpr even if the work of resetting the flagging. curbing and guttering is to be done at tbe expense of tbe land owner, it must be as important for the protection of his interests, that he should have the statutory notice of the contemplated improvement, and in that way afforded an opportunity of showing it to be unrequired, as it is that the notice should be given of an ordinance or resolution for repairing the carriageway of a street. The policy which would entitle him to notice of the latter would clearly include also the former. But as this case will not depend upon that point, it need not on the present occasion be decided.

In making the improvement in controversy, an excavation was made mostly between Eighth and Ninth avenues, by which the grade of Seventy-second street was reduced below the line at which it had been in the first instance established and graded. And as that reduction was neither asked for by the application of the owners of two-tliirds of the lineal feet of land fronting upon the street, as a preceding statute had required (vol. 2, Laws of 1867, p. 1751, chap. 607, § 5); nor in terms provided for by the resolution, or ordinance authorizing the pavement; for those reasons, also, it was insisted that the assessment was unlawful because it included the expenses of making that change of grade. But for the purpose of changing the grade of this street, as it had been at first established, no such application of the property owners was necessary. The change was required because of a reduction of 'two feet in the grade of Eighth avenue at the point whei’e it intersected Seventy second street. And it was expressly authorized by chapter 593 of the Laws of 1870, in order to conform the grade of this street to that of the avenue. All that was required for that purpose was, that the commissioner of public works should make the change within six months after the passage of the act. That took place on the 3d of May, 1870, and the change was shown to have been made by him on the second of the following November, which was within the time the legislature had prescribed. The proceedings taken in laying down the pavement were not for those reasons subject to the imputation that they effected any unlawful or unwarranted change in the grade of Seventy-second street.

This work was authorized after the change made in the grade had been fully provided for, and it must, therefore, have been intended, although not in terms expressed, that in performing it the lawful grade of the street should be followed. The resolution required the MacAdam pavement to be laid, and a reasonable understanding and construction of that authority would include whatever should prove necessary to accomplish that result. And the excavation made was clearly one of those acts. "Without it the pavement could not be laid, and it must have been intended it should be upon the legally established grade of the street. And though that was not expressly directed by the resolution or ordinance, it was clearly to be inferred for the end provided for could be obtained in no other way. (2 Dillon on Municipal Corporations, 736, § 636; Schenley v. Com., 36 Penn., 29, 60; Allegheny City v. Blair, 74 id., 225, 230; State v. Council of Elizabeth, 1 Vroom, 365 ; Williams v. Mayor of Detroit, 2 Mich., 560.)

It is clear that the taking up and resetting of the curbing and guttering were also necessary for the purpose of effecting this change in the grade. It could not be accomplished without that. And, consequently, the power to do it was conferred by the statute allowing the grade of the street to be conformed to that of the avenue. Against that the owner could present no valid or reliable objection. The specific thing which included it was provided for by the express terms of the law. No ordinance or resolution of the common council was, for that reason, required to provide for the change. But as its necessity had been created by the change in, the grade of the avenue, an absolute right to make that of the street correspond with it, was given unqualifiedly by the statute to the commissioner of public works. As to that no publication was necessary, for the act including it prescribed all that should be done for that purpose, and that excluded the obligation to make any publication of notice whatsoever.

What the ordinance or resolution providing for the work directed, was the laying of a MacAdam pavement upon a street which had never been paved upon its carriageway in any form before. And as that was the original pavement on that portion of it, and it could not be properly laid without reducing and resetting the curbing and guttering, the failure to publish the ordinance or resolution, did not justify the order vacating the assessment which was made for the expenses. (Laws of 1874, chapter 313.) Neither the failure to give the notice, according to tbe terms of that act, nor tbe resetting of tbe curbing and guttering, which was necessarily included in the power created by tbe statute of 1870, to change tbe grade, rendered tbe assessment invalid.

For these reasons, and also for tbe additional one that tbe work had been completed, and tbe liability to pay tbe expense of it created before 1875, chapter 476 of tbe Laws of that year, can have no application whatever to this case.

Tbe order appealed from should be reversed with ten dollars costs, besides tbe disbursements on tbe appeal, and an order entered denying tbe application.

Davis, P. J.:

I agree to tbe result in this case upon tbe gronnd on wbicb it is put by my brother Daniels, but I dissent from what is said by him indicating, that curbing and guttering a street, is either in fact or in law, a paving of tbe street itself. Technically, it is no part of tbe “ paving,” but it is something wbicb has its own distinctive name and use; and it is often, and, indeed, in new streets in tbe city almost always done wholly independently of tbe paving, and long before tbe street itself is required to be paved. There is no authority either in tbe ordinances of tbe city, or in usage, or in any of tbe decisions, recognizing the idea that tbe mere fact that a street was years ago curbed and guttered at tbe expense of tbe owners of tbe adjoining lands, relieves them from the expense of pctming tbe same whenever that is adjudged necessary. It is only when a street has once been completely paved, and paid for by tbe owners, that the future burden of repctming is thrown upon tbe city.

And tbe word “ repaving ” or repavement as used in tbe acts of 1872 (chap. 580), and 1874 (chap. 313), relate only to a street wbicb has once been completely paved. In the Matter of Burmeister (9 Hun, 613) I took occasion to refer to various ordinances regulating this subject and showing tbe established distinction between tbe “ curbing and guttering ” of a street, and its pavement.

To say that a street is prned when it is simply curbed and guttered, seems to me to be an abuse of terms; and even if curbing and guttering be part of tbe pavement, to say that completing tbe pavement by paving the carriageway, which is all of tbe street lying between gutters, is a “repa/oement” where no paving of the carriageway had ever been made at all, is to make the less include the greater in a manner inconsistent with law, and the general understanding of men.

Brady, J., also concurred in the result.

Order reversed, with ten dollars costs and disbursements. Order to be entered denying application.


source: Caselaw Access Project

author: Davis, P. J. :

license: Public Domain

text:
    CHARLES GUIDET, Respondent, v. THE MAYOR, Etc., of the CITY OF NEW YORK, Appellants.

      City of Hew York — contract by commissioner of public works — chap. 888 of 1870— Board of audit — chap. 9 of 1872 — decisionof — how reviewed.

    Section 1 of chapter 888 of 1870 provided that there should be raised for repairs to street pavements $250,000, to be expended by the commissioner of public works, but only after specific agreement by him with the parties employed. jBeld, that, although as to the $250,000 therein provided to be expended, the commissioner of public works was relieved from the restrictions of the city charier as to the manner of entering into contracts and the advertising for 'bids, yet that as to contracts entered into after the year 1870 had expired and the $250,000 provided for in the act had been expended, such exemption ceased, and a compliance with the provisions of the charter was essential to their validity.
    Plaintiff, claiming to have a demand against the city for $81,482.50 for paving done under a contract made with the commissioner of public works, procured a mandamus compelling the board of audit, created by chapter 9 of 1872, to pass upon his claim, which it did, and gave a certificate to him for $18,200, which sum was paid to him by the comptroller, to whom he gave a receipt in full payment of the claim, at the same time protesting against being compelled to give the receipt and accept that sum, and stating that he should at once bring an action to recover the balance.

      Held, that the plaintiff was bound by the decision of the board of audit, and by accepting the money and giving the receipt thereunder.
    If dissatisfied with the award, he should have taken steps to review the action of the board, or to compel a further audit of it; its decision could not, however be attacked collaterally.

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action was brought to recover the balance alleged to be due plaintiff under a contract made September 29, 1871, between the plaintiff and the commissioner of public works of the city of New York for the doing'of certain paving for the sum of $31,432.50, under which contract plaintiff had received $13,200, allowed to him by the board of apportionment and audit; such board having been compelled to act thereon by a writ of mcmdamtia sued out by the plaintiff. On receipt of such sum of $13,200, plaintiff gave a receipt in full to the city, at the same time protesting against the reduction of his claim and informing the comptroller that he would bring an action to recover the balance claimed by him to be still due.
    The contract was not made in conformity with section 104 of chapter 137 of the Laws of 1870, but the plaintifE claimed, and the referee found, that the commissioner of public works was not bound by the restrictions contained in that section because of the powers conferred on him by section 1, chapter 383 of the Laws of 1870, providing that there should be raised $250,000 for the repairs of streets, to be expended under the direction of the commissioner of public works, but only after specific agreement by him with the parties employed.

      D. J. Dean, for the appellant.

      O. W. West, for the respondent.
   Davis, P. J. :

The answer was altogether too strictly construed against the appellant by the referee. The complaint alleges that, pursuant to a contract made between the plaintiff and defendants, the plaintiff repaired certain pavements, and that for the work done the sum of $31,432.50 became due at the time fixed by the contract, and on which $13,200, had been paid; and demanded judgment for the balance. The answer denied that the defendants promised or agreed to pay any greater sum than the said $13,200, for the repaving, etc., mentioned in the complaint. This answer was inartificial and unlawyerlike, but it should not, we think under section 159 the Code, have been construed as admitting the contract set forth in the complaint. On the other hand, it was a denial of that contract, and could only properly'have been construed as an admission of a contract to pay a sum for the, work done, not exceeding $13,200.

This answer was accepted by the plaintiff without any proceeding having been taken to make it more definite and certain; and when the case came down to trial it was the duty of the court to construe its allegations liberally and so that substantial justice should be rendered to both parties. (Olcott v. Carroll, 39 N. Y., 436.) We think it devolved upon the plaintiff to prove the contract as alleged by him, and that the defendants were at liberty to deny its execution, and to assail its validity to any extent in their power.

It must be conceded that the work was not done under any contract made in conformity to section 101 of chapter 137 of the Laws of 1870; but the plaintiff contended, and the referee held, that the commissioner of public works was not bound by the restrictions contained in that section, because the legislature, by chapter 383 of the Laws of 1870, conferred upon the commissioners of public works direct and exclusive authority to contract for street repairs, without regard to the provisions of the charter. The last-named act is the annual tax levy, of the city. It was enacted for the purpose of providing for the current expenses of that year and regulating the expenditure of the sums appropriated for such expenses. By sec- ' tion 1 of the act it was provided that there should be raised for repairs to street pavements $250,000; and it declared that the appropriations for repairs to street pavements should be expended under the direction of the commissioner of public works, but only after specific agreement by him with the parties employed.” That this provision was sufficient to relieve the repairs, etc., mentioned in section 1 of chapter 383 of the Laws of 1870, from the obligations and requirements in respect to contracts contained in the charter, has been held by the Court of Appeals. But it seems to us obvious from the language of the act that this unrestrained authority conferred upon the commissioner of public works only related* tithe expenditure of the appropriation made in that act, in respect of which the commissioner was clothed with absolute and exclusive authority.

The contract under which the plaintiff claims, seems not to have been made, while the power given to the commissioner of public works, under the act of 1870 was in force, but .after the year 1870 had expired, and after the full expenditure of the appropriation in respect of which such authority was conferred.

The contract was made on or after the 29th of September, 1871; and the source of payment seems to have been the sum provided by the board of apportionment under section 3 of chapter 383 of the Laws of 1870, and no further power seems to have been conferred upon the commissioner of public works in respect to the expenditure of moneys appropriated to repairing streets in the year 1871. If this be so, the work covered by the contract, inasmuch as it required the expenditure of a greater sum than $1,000, must fall within the general system in respect of contracts, created by the charter, and a contract made without observing, but in utter disregard of those restrictions, would not be valid. (Donovan v. The Mayor, 33 N. Y., 291.)

The defendants alleged by the answer, and it was proven on the trial, that the claim of the plaintiff had been presented to the board of apportionment and audit created by chapter 9 of the Laws of 1872. That was a tribunal having judicial power to pass upon and determine concerning the subject-matters within its jurisdiction. (People v. Board of Apportionment, 52 N. Y., 224.) It was held in the Metropolitan Gas-light Co. v. The Mayor (9 Hun, 706), that the decisions of that board were judicial in their nature, and cannot be disregarded in a collateral proceeding, and that when a claim had been voluntarily presented to that board for its consideration and determination, its decision, when finally made, would continue binding upon the parties, so long as it remained unreversed, citing People v. Collins (19 Wend, 56); Supervisors v. Briggs (2 Hill, 135 ; 2 Denio, 26); Swifts v. Poughkeepsie (37 N. Y., 511). It can hardly be claimed on the part of the plaintiff that his claim was not voluntarily submitted to that board, so far at least as he was concerned, for it was done by virtue of a mandamus sued out of this court by himself, to compel the board to take cognizance of, and to proceed to audit his claim under the contract set forth in his complaint. The board did so and the result was an adjudication in favor of the plaintiff for the sum of $13,200, which sum was afterwards paid to-him by the comptroller upon, his executing and delivering to that officer a receipt in the following words:

“New York City, April á, 1873.

“ Received from Andrew II. Green, warrant No. 2119, the sum of $13,200 in full payment of the claim referred to in the written certificate of the board of apportionment and audit.

“$13,200. CHARLES GUIDET.”

Simultaneously with the delivery of this receipt by him, the plainviff delivered to the comptroller a letter, or notice in writing protesting against the action of the board in reducing his claim to the sum paid, on the ground that it was illegal and unjust, and in substance declaring that he received the money only on condition that it should apply on account of his claim, and informing the comptroller that he should immediately commence an action against the city for the balance of the claim. This proceeding on the jiart of the plaintiff does not appear to us to have been of any legal effect. His remedy, if dissatisfied with the audit and award and the sum paid, should have been pursued by reviewing the action of the board or by taking steps to compel a further audit at the contract price, if he wore entitled to the same. (People v. Supervisors of Cortland, 58 Barb., 139; Supervisors of Onondaga v. Briggs, 2 Denio, 26 ; S. C., 2 Hill, 135 ; Nicholl v. Mason, 21 Wend., 339; Thomas v. Rumsey, 6 Johns., 26; Metropolitan Gas-light Co. v. Mayor, supra.)

We think the report of the learned referee and the judgment entered thereon were erroneous, and must be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

Brady, J., agreed that there should be a new trial.

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


author: Davis, C. J.:

text:
    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant, v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Respondent.

      Preferred causes — action in which city of New York is a party — Code of Oivil Procedure, §§ 789 to 792.
    Section 791 of the Code of Oivil Procedure, as it was passed by the legislature of 1870, gave a preference in subdivision 4 to “an action or special proceeding in which the mayor and common council of the city of New York are parties.” This subdivision was stricken out by the legislature of 1877, and all acts giving a preference to that class of cases, except a clause contained in section 112 of the city charter (chapter 335 of 1873), were expressly repealed. The section in which this clause was contained relates to the board of estimate and apportionment, and the clause in question had no connection with any thing contained therein. Held, that it was the manifest intention of the legislature to deprive actions of this character of the preference conferred by previous statutes, and that the mere omission to discover and repeal the clause in the charter should not be allowed to prevail against it.

      Semble, that the provision in question was unconstitutional, because it was included in a local act and was not embraced in its title.
    Motion to correct tlie calendar by striking tbe above-entitled cause from tbe preferred calendar, and placing tbe same in its proper order on tbe general calendar.

      John M. Scribner, Jr., for tbe motion.

      William G. Whitney, counsel for tbe corporation, opposed.
   Davis, C. J.:

Tliis motion depends upon tbe question wbetber actions and proceedings by and against tbe city of New York are entitled to preference on tbe calendars of tbe courts under tbe statutes now in force. Tbe Code of Civil Procedure contains an article specially devoted to preferred and deferred causes. (Code, §§ 789 to 795 inclusive.) It was obviously tbe intention of tbe commissioners to revise tbe statutes, to group, arrange and classify in tbis article all the actions and special proceedings, wbetber civil or criminal, entitled to preference on the calendars of the courts, by statutes or by the rules or practice of the courts. The statutes giving such preferences were quite numerous, and were scattered through the Session Laws of many years, and were difficult to find, and when found were embarrassing to the courts and profession, because of their general lack of order, each in many instances, giving preferences which came into collision with similar preferences given by others. Hence, by section 791 of the Code, the commissioners sought not only to declare the preferences, but to arrange their order with respect to each other, and to bóllate and condense them so that a single section should bring them all at once before the eyes of the court and the profession.

As the section was reported by the commissioners and enacted by the legislature of 1876, it contained as subdivision 4, a provision in these words: “An action or special proceeding in which the mayor and common council of the city of New York are parties.”

This subdivision was a condensation of the several enactments on the same subject contained in all the statutes, and in the former Code, and manifestly was intended to supersede them all.

But when the Code of Civil Procedure was amended in 1877, the legislature struck out subdivision 4 of section 791, and in so doing struck from the article relating to preferred causes, the only provision which gave preference to city causes. (Laws of 1877 chap. 416, p. 458, amendment, 177.)

The question is whether by doing this the legislature intended to abrogate all preferences in that kind of cases. A full consideration of their action seems to us clearly to indicate that intention. The tax levy of 1871, contained a provision in these words: “And all actions or proceedings in which the mayor, aldermen and commonalty of the city of New York are plaintiffs or defendants shall have preference, and may be moved out of their order on the calendar.” (Laws 1871, chap. 583, § 5.) This provision was expressly repealed in 1877. (Session Laws, 1877, p. 474, § 1, sub. 45.)

So, by chapter 431 of the Laws of 1876, chapter 379 of the Laws of 1848, was so amended as to give preference to actions in which the city is a party in the Court of Appeals. But that enactment was also repealed by the legislature of 1877. (Session Laws of 1877, p. 471, § 1, sub. 22.) By chapter 70 of the Laws of 1873, provision was made for preference in proceedings by writs of mandamus and prohibition, but that provision was also repealed. (Laws of 1877, p. 175, § 1, sub. 47.) From the express repeal of all these preceding enactments, and from the striking out of the preference as it stood in section 791 as previously enacted, there was apparently an earnest effort to erase from, the statutes all preference in city cases, and to preserve the intention of the commissioners, to bring all existing preferences into condensed and classified order.

But it appears that one provision on the subject escaped the vigilance both of the commissioners and of the legislature. Hidden away in section 112 of chapter 335 of the Laws of 1873 (familiarly known as the city charter), is a provision thrown in at the end of the section without any connection or congruity with any thing that precedes it, in these words: and all actions or proceedings in which the mayor, aldermen and commonalty of the city of New York are plaintiffs or defendants, shall have a preference and may be moved out of their order on the calendar.” The section (112) is the one which creates the board of estimate and apportionment, and defines its powers and duties, and the relations of the other departments to such board. It is extremely long and complicated, and at the foot of the second page of the section, and as part of a sentence which vests the powers of any former board of apportionment or audit in the new board, without being separated, even by the dignity of a capital letter, follow the words above quoted, as if the weary mind of the draughtsman in an illucid moment, lost the thread of its subject and fell off into a maze of incohorency. It does not speak of courts, and it may be the writer had some notion of a calendar of matters and tilings before the board of apportionment; but assuming that it was intended to give a preference to cases in courts, still we think its discovery does not impair the manifest intention of the legislature in the acts above referred to, to do awray with all such preferences. The various repeals of all the acts above shown to have been repealed simultaneously with the striking out of the provision in section 791, seems to make the intention entirely clear.

If there were any doubt about this, it would be easy to show that the provision in this charter was and is invalid, because included in a local act and not embraced in its title. It is foreign to the subject of the act which is the reorganization of the local government of the city. A provision to regulate the calendars of all the courts both State and local, most of which have no relations to the corporation, beyond that of being the forums in which it is prosecuted or defended, is quite apart from the constitutional purposes of the act.

But however this may bo, we think the provision must fall, under the manifest intention of the legislature to create a new statute of preferences which should not include city causes.

There is no sound reason why such cases should have preference, and we think it was the part of wisdom for the legislature to give the city a breathing spell from the ceaseless rush of litigation which, through the operation of preferences, has not only crowded our calendars to the serious injury of other equally meritorious suitors, but depleted the treasury faster than exhausted tax-payers can easily replenish it.

' The result is that the motion should be granted, and all cases on the calendar of like character, must take their places in the rank of other non-preferred litigations.

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

Motion granted.


author: DaNiels, J.: Brady, J.:

text:
    JACOB STOUT and others, Trustees, etc., Respondents, v. WILLIAM E. RIDER and others, Appellants.

      Usury — payments made to postpone sale under judgment of foreclosure — application of, upon amount due —when not proper.

    On May 5, 1878, a judgment of foreclosure and sale was entered in this action, The plaintiffs, three in number, were trustees of an estate, the funds of which were in the hands of Jacob Stout. After the judgment was entered, the defendant, to postpone the enforcement thereof,, paid to the plaintiffs’ attorney $2,500. The agreement to postpone was made by the attorney without the knowledge of any of the trustees, except Thomas Stout, between whom and the attorney all the money received was divided, no portion being paid over to the estate. This motion was made to have the judgment vacated, and the money so, paid applied upon the amount due.

      Held, that as two of the trustees had no knowledge of the agreement, and as the estate derived no benefit from the money paid under it, the application was properly denied.
    Appeal from an order denying a motion to set asido a judgment and for leave to serve a supplemental answer setting up usury.
    The action was brought to foreclose a mortgage and resulted in a judgment, foreclosing the rights of the parties defendant in the mortgaged premises and directing a sale thereof.

      George 117 Stephens, for the appellants.

      Edmwncl Coffin, Jr., for the respondents.
   DaNiels, J.:

The judgment was entered on the 5th day of May, 1873, and the order to show cause why it should not be set aside, and leave given the appellants to serve a supplemental answer, was made on the 31st day of August, 1876. The mortgage was a portion of a trust estate held by the plaintiffs, the funds of which were in the actual custody of Jacob Stout, who was one of the plaintiffs. It was not claimed that the mortgage itself was in the least degree tainted with usury. But it appeared that before the judgment was recovered, and also subsequent to that time, various sums of money had been paid for the extension of the time of payment of tile mortgage debt. These payments in the whole amounted to $2,550, and the object of the motion was to secure their application upon the mortgage debt, under the principle of tlie case of Real Estate Trust Company v. Keech (7 Hun, 253). In tiiat case, however, it appeared that the creditor itself received the money paid for the extension, while in the present case the agreements made to extend the time of payment appear to have been made by the attorney in the action without authority from the plaintiffs, but with 'the sanction of Thomas II. Stout, who was one of them, and who shared in the moneys received for that purpose. The other two plaintiffs, including the one having the custody of the trust funds, knew nothing of the agreements made by their attorney, and in no way whatever authorized or sanctioned them. But the attorney made them for the personal benefit of himself and the plaintiff, Thomas II. Stout, and the sums received were divided between them, and in no way applied to the benefit of the trust estate.

It was claimed in support of tbe application made, that the transactions through which the extensions'were obtained, were within the prohibitions of the statute forbidding the taking of usury, because the agreements were in form for' the benefit of the plaintiffs. And such an agreement was considered to be in violation of the provisions of the statute in the case of Algur v. Gardner (54 N. Y., 360), as the opinion given plainly shows. And it was so regarded in the case of Estevez v. Purdy (6 Hun, 46). But that case has since been reversed by the Court of Appeals (66 N. Y., 446), and the preceding cases of Condit v. Baldwin (21 N. Y., 219), and Bell v. Bay (32 id., 165), held to include an agreement made by the agent professedly for the benefit of the ■ principal or lender, when no authority to make such an agreement has in fact been conferred upon the agent.

This principle may leave but very little for the statute to operate upon, but as it has been so plainly stated and established, it must now be followed. And as no part of the payments made for the extensions were received by the trust estate, and the majority of the trustees, including the custodian of the trust funds, in no way authorized or sanction el them, but the moneys were individually divided between, and used by,.the attorney and one of the trustees, for their own personal benefit, a case was not shown entitling the appellants to the relief claimed by them. The conduct of the trustee who participated in the enjoyment of the proceeds of the agreements made by the attorney, did not bind the others, or the trust estate, which was represented and controlled by all the trustees together. (Ridgeley v. Johnson, 11 Barb., 527; Moir v. Brown, 14 id., 39 ; Thatcher v. Candee, 33 How., 146; Van Rensselaer v. Akin, 22 Wend., 549.)

The order appealed from should be affirmed, but without costs,

Brady, J.:

Yielding to the decisions of the Court of Appeals, cited in' the opinion of Daniels, J., which seem to me to have abrogated a plain statute, I very reluctantly concur.

Davis, P. J., concurred.

Order affirmed, without costs.


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

text:
    HENRY RANDELL, Trustee, etc., Appellant, v. THEODORE VON ELLERT and others, Respondents.

      Sale under execution, or pursuant to judgment — interest conveyed — how stated in deed— Code, § 1244.
    Under section 1244 of the Code of Civil Procedure — requiring a conveyance of property sold by virtue of an execution, or pursuant to a judgment, to state distinctly in the granting clause thereof whose right, title or interest was sold and is conveyed — the referee, at a sale under a judgment of foreclosure, should ascertain from the judgment the time when the mortgage was recorded, and state in the deed that the interest sold and conveyed is the same as the mortgagor had in the land at that time. (Brady, J., dissenting.)
    Appeal by plaintiff as purchaser, in this and two other causes, from orders denying motions made to require the referee to state in the deeds, executed by him pursuant to foreclosure sales, whose right, title and interest in the property affected was sold. '

      Robert Benner, for the appellant.

      John J. Thomasson, referee in person.
   Daniels, J.:

The orders were made relieving the referee from the obligation of stating in his deeds whose title and interest in the land had been sold by him, because in the language contained in them it seemed impossible for the referee to give such deeds as the law required, and also comply with the new provision contained upon this subject in the Code of Civil Procedure. "Why this impossibility should be supposed to exist seems to be no farther indicated than it can be gathered from the provisions of the preceding statute, declaring the effect which the deed should have that might be executed pursuant to a sale of property under a judgment in a foreclosure case. Under these provisions it was declared that the deed should have the same effect, and vest in the purchaser the same estate, as would have been acquired by the foreclosure of the equity of redemption, and should be as valid as though executed by the mortgagor and mortgagee of the property, and should be an entire bar against each of them, and all the parties to the suit in which the decree should be made, and their heirs and all claiming under such heirs. (3 R. S. [5th ed.], 273, § 88.) And there seems to be nothing contained in these provisions creating the least inability to comply with what has since been required to be observed in the judicial sale of real estate.

The fact that the deed upon a foreclosure sale shall be attended with this effect, cannot disable the officer making the sale from also stating in it whose right, title and interest in the property has, in fact, been sold by him. Both provisions and all the requirements made by each of them are entirely consistent, and may be Avliolly as well as conveniently observed.

But if they could not bo, that would not result in the nullity of the last provision enacted. That is never the effect of inconsistent legislation.

But the last enactment made is observed and executed, while that preceding it is regarded as repealed. The last expressed intention of the legislature is always the one to be enforced when it conflicts with others previously declared. Eor that reason, if the statutes could not both be enforced, the provision made by the Code would be the one that, at the present time would be obligatory. But, in fact, there is no conflict whatever in the laws upon this subject. The preceding statute requires nothing to be stated in the deed upon the foreclosure sale, inconsistent with this provision of the Code. And the declaration of the effect of the deed in no way prevents a statement from being made, showing whose right, title and interest has been sold. In effect that would be the title of the mortgagor at the time of the execution and recording of the mortgage, when no different adjudication luis been made by the judgment. And no difficulty can stand in the way of making such a statement in the deed. The object of the new enactment is entirely apparent. It was to preserve the symmetry of the recorded title, and dispense with the necessity of looking through the judgment record in order to ascertain the interest that has been sold under it.

The enactment made by the Code of Civil Procedure is plain and peremptory. And it was made in terms so broad as clearly to evince the design to include all foreclosure cases. Its language is, that a conveyance of property sold by virtue of an execution, or sold pursuant to a judgment, must distinctly state in the granting clause thereof, whose right, title or interest, was sold, and is conveyed, without naming in that clause, any of the other parties to the action,” etc. (Code of Civil Procedure, § 1244.) And it includes all conveyances of property sold, either by virtue of an execution or judgment.

It is so clear, that construction is not required for the purpose of rendering it perspicuous. There would seem to be no difficulty whatever in the way of the referee, which could prevent him from ascertaining by the judgment the time when the mortgage was recorded in each one of these cases, and if the judgment has been regularly obtained, in stating in the deed that the interest sold and conveyed is the same as the mortgagor had in the land at that time. It may require greater attention than has previously been necessary in these cases, but because it does, the court cannot dispense with the observance of what the legislature has so plainly required.

The enactment is, that the deed must distinctly state the fact, and while it continues in force the officer making such a conveyance cannot be relieved from its observance. The order made in this and the other two cases, should be reversed, and an order entered requiring the referee to comply with the direction which has been given upon this subject.

Davis, P. J., concurred.

Beady, J.:

I do not discover points on the part of the defendants or any of them. The controversy seems to be between the referee and the purchaser, the plantiffi

The section of the Code considered is very broad and leaves perhaps little room for doubt, but its application must depend upon the decree. The deed should follow that and the referee should not be required to determine whose interest was sold. If the decree is general so should be the deed and if any other rule be adopted it should rest upon the decree, which should be required to state tbe interest in detail. Tbe decree not being before us, I assume tbe order made was right.

Present —Davis, P. J., Brady and Daniels, JJ.

Order reversed, order entered requiring referee to comply with direction given on tbe subject.


author: Davis, P. J.: Daniels, J.:

text:
    WILLIAM C. CONNER, as Sheriff, etc., Respondent, v. ALBERT WEBER, Appellant. WEALTHIE P. CRAIG, Respondent, v. ALBERT WEBER, Appellant.

      Interpleader — when not allowed — Attachment—what actions maintainable by

    One Weber entered into a contract with one Pattison, by which the former became bound to pay to W. P. Craig the sum of §1,600, and on December, 1876, Craig brought an action against Weber to recover it. On July 31, 1876, in an action against Pattison, brought by one Yan Dyck, an attachment was issued to the sheriff, who served it upon Weber, and demanded the moneys due thereunder, and, in January, 1877, he commenced an action to recover the same. Craig having brought an action against Weber to recover the sami money, Weber, admitting that the money was due under the contract, appliec for permission to pay it into court, and have Craig substituted in his place, as defendant in the action brought by the sheriff.

      Held, that the motion was properly denied; that under the case of Thurber v. Bla/nck (50 N. Y., 80), the sheriff could not maintain his action against Weber to reach the equitable interests which it was claimed Pattison had in the money.
    That Yan Dyck could only reach the money, to which the legal title under the contract was in Craig, by establishing, in an action brought after the return of an execution unsatisfied, that it belonged in equity to Pattison, and that the legal title was transferred to Craig in fraud of the latter’s creditors.
    Appeal from an order of tbe Special Term, denying a motion on tbe part of tbe appellant, Weber, for an interpleader.
    On or about April 10, 1876, tbe defendant Weber entered into a contract witli J. N. Pattison, whereby be agreed to pay Wealthk P. Craig $3,600 for said Pattison’s services as pianist at tbe centennial exhibition of 1876, at Philadelphia, Pennsylvania, for six months, from May 10, 1876, to November 10, 1876.
    There was due Mrs. Craig on October 10, 1876, $500, and on November 10, 1876, $1,100, under said contract, which said Weber refused to pay. On or about July 31,1876, one Herbert Van Dyke commenced an action against said Pattison, on an alleged claim for services, to recover about $850, and procured an attachment to be issued therein against certain moneys in the defendant Weber’s hands, claiming that said moneys belonged to said Pattison. This action is still pending and undetermined.
    On December 16, 1876, the said Mrs. Craig brought an action against said Weber to recover said $1,600 and interest, being the balance due her under said contract. Subsequently, and on or about January 22, 1877, the sheriff commenced an action against Weber, under his attachment, to recover the same money. On the next day Weber procured an order directing Wealthie P. Craig to show cause, at a Special Term of the Supreme Court, to be held at the county court-house in New York city, on February 1, 1877, why she should not be substituted as defendant in place of Weber in the above-entitled action.
    The motion came on for argument, and the justice made an order denying the motion to substitute.

      Yanderpoel, Oreen <& Gumvng, for the appellant.
    The order is appealable and should be reversed. The proceeding is taken under section 122 of the Code of Procedure, and is a remedy concurrent with the action of interpleader. (McKay v. Draper, 27 N. Y., 256 (260); Patterson v. Perry, 6 Duer., 686; Yosburgh v. Huntington, 15 Abb., 251.) An appeal could have been taken, of course, had the remedy selected been the action of interpleader, and as the right to relief in either case springs from substantially the same state of facts, the right of an appeal applicable to the one is equally appli cable to the other, unless taken away by law, which the Code has not done. (Wilson v. Dwiccm, 11 Abb. Pr., 3; Pn re Duff, 10 Abb. [N. S.], 116; People v. N. Y. O. B. B. Co., 29 N. Y.j 118; Gent. Hat. Ba/nle, v. Glcurh, 2 J. & S., 196.) The courts have always held that the right to the remedy of interpleader depends upon the fact that the party claiming the right is the mere holder of a stake which is equally contested by other parties, and as to which the moving party stands wholly indifferent; and that when the respective rights of the claimants are settled nothing further remains in controversy. (Wakeman v. Dickey, 19 Abb., 24; New York andN N. R. R. Go. v. Schuyler, 1 id., 417; Schuyler v. Ilargous, 3 Rob., 673; Lincoln, v. Rutland and B. R. R. Co., 24 Yt., 639.) The defendant Weber is ignorant of the rights of the different claimants, and he cannot safely pay the fund to either. {Mohawk and Hudson R. R. Co. v. Clute, 4 Paige, 384; Shaw v. Cosier, 8 id., 339; Wilson v. Duncan, 11 Abb. Pr., 3.) The claims of the adverse parties are identical. They are also conflicting. Each seeks to recover from the defendant the same $1,600 which Weber admits he holds, and is willing to pay to the party entitled to it. {Mayor of N. Y. v. Flagg, 6 Abb., 296; Mohawk and Hudson R. R. Co. v. Chute, 4 Paige, 384.) The property claimed is definite and certain in its character. It is the $1,600 in Weber’s hands. {Lincoln v. Rutland and B. R. R. Co., 24 Yt., 639; Cady v. Potter, 55 Barb., 463.) Weber is in possession of the property in dispute, and thus able to obey any order of the court as to its disposition. ('Vosburgh v. Ilimtvngton, 15 Abb., 254.) Under circumstances such as these it is the invariable rule, under every system of practice, whether at common law, in equity, or under the Code, to allow the person occupying the position of a mere stakeholder to deposit in court the money or thing claimed, in order to protect him from being compelled to deliver or pay it to both claimants, and to relieve him from the vexation attending upon the suits instituted against him. {Crawshay v. Thornton, 2 M. & 0., 19; Langston v. Boylston, 2 Yes., Jr., 109; Bedell v. Hoffman, 2 Paige, 199; Atkinson v. Monks, 1 Cow., 691; Shaw v. Coster, 8 Paige, 339; Trigg v. Hitz, 17 Abb., 436; Johnston v. Lewis, 4 id. [N. S.], 150.)

      B. F. Valentine, for the respondent Conner.

      Paul Fuller, for the respondent Craig.
   Davis, P. J.:

The appellant Weber, admits his indebtedness upon a contract made between himself and one Pattison in the sum of $1,600, which sum was payable by the terms of the contract to the respondent Wealthie P. Craig. The legal title to the money, payable under the contract, was therefore plainly in Mrs. Craig. On the 16th of December, 1876, Mrs.' Craig brought her action against Weber in this court upon said contract to recover said sum, being the balance alleged to be due her under the contract. In an action brought by one Yan'Dyck against Pattison for the sum of about $850, on the 81st of July, 1876, an attachment was issued and delivered to Sheriff Conner, and he thereafter served the attachment by delivering and leaving with the appellant Weber a certified copy thereof, and demanding of Mm the moneys owing upon the above-mentioned contract, and he left also with said Weber a notice specifying that he levied upon the moneys payable under said contract.

No judgment has yet been recovered in the action of Yan Dyck against Pattison. About the 1st of January, 1877, the sheriff, Conner, commenced an action against the appellant Weber, based upon the attachment above mentioned, to recover the moneys due under said contract. Afterwards, and about the twenty-second of January, Weber made his motion, in substance, based upon the proceeding's in both actions against him, for an order substituting Mrs. Craig as defendant in the action of Conner against Mm, and for such other or further relief as to the court should seem just and proper, and in the meanwMle staying all proceedings in both actions.

The court denied the motion. There is nothing to show upon what particular grounds the motion was denied at Special Term, but it seems to us quite apparent that, under the authority of Thurber v. Blanck (50 N. Y., 80), the sheriff cannot maintain his action against Weber. The attachment was levied upon equitable assets only. The legal title to the moneys payable under the contract was very clearly in Mrs. Craig and not in Pattison. Pattison could not himself maintain an action upon the contract to recover such moneys, and the only way in which Yan Dyck can reach the same and apply them upon his judgment against' Pattison will be by establishing, after the return of an execution upon his judgment, that the money in equity belongs to Pattison, and that the legal title is held by Mrs. Craig in fraud of Pattison’s creditors.

Neither the sheriff nor Yan Dyck can bring a direct action against Weber to recover such indebtedness, by virtue merely of the attachment, nor before the return of an execution upon any judgment that may be recovered in the action of Yan Dyck against Pattison.

W e regard the case of Thurber v. Blanck as decisive of these questions. That decision is in direct conflict with the decision of the Commission of Appeals in Mechanics and Traders' Bank v. Dakin (51 N. Y., 519), but we are constrained to follow the decision in Thurber v. Blanck, without regard to our opinion as to which of those decisions is the better law. It would not therefore, vre think, have been proper for the court below to have ordered the moneys owing by Weber to be paid into court in the action brought by the sheriff, and that Mrs. Craig be substituted as a party defendant in that action; nor to have directed the moneys to bo paid into court in Mrs. Craig’s action, and that the sheriff be substituted as defendant therein, because, in neither -case, according to the rule laid down by the Court of Appeals, can the sheriff contest or defend against Mrs. Craig’s claim to the money.

If, however, any order had been made, it should have been that the money be paid into court in the action brought by Mrs. Craig against the appellant Weber; first, because her action wras first commenced and covers the entire claim, while the sheriff’s action, afterwards commenced, is based upon an attachment for an indebtedness amounting to little more than one-half of the claim; second, because the legal title of the moneys is clearly in Mrs. Craig, and if any contest can be made by the sheriff over such title under the attachment in his hands, issued in a suit which has not ripened into judgment, it ought to be made in her suit rather than the one brought by the sheriff. We think, however, that under the case of Thurber v. Blanck, above cited, the motion was properly disposed of by the court below, and the order should be affirmed, with costs.

Daniels, J.:

According to the doctrine of the case of Thurber v. Blanck (50 N. Y., 80), the validity of the claim made by the plaintiff Craig to the debt cannot be tried or determined in the action brought by the sheriff. Por that reason the denial of the application made was a proper exercise of judicial discretion, and as the order involved tlie exercise of such discretion, according to the language of section 122 of the Code of Procedure, it should be affirmed. I concur for those reasons.

Brady L, concurred.

Orders affirmed, with costs.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE COLUMBIA CAR SPRING COMPANY, Appellant.

      Seceirer — passage of accounts of — pre-requisites to order of reference.

    Before a referee is appointed to pass upon tlie accounts of a receiver of a corporation, tlie receiver should present to, and file with the court a full and definite account, verified by his oath, itemizing with particularity the various claims made by him, and the reference should relate specifically to the claims therein contained.
    Appeal from an order appointing a referee to pass a receiver’s accounts.
    The defendant is a manufacturing corporation organized under the general laws of this State. The object of the suit was to forfeit the charter and annul the existence of the corporation, for an alleged failure to comply with the statute requiring corporations to file a certificate, stating how its capital stock was paid up, and for other reasons stated in the complaint.
    At the time of its commencement, an order was made placing it in the hands of a receiver, who was, by a subsequent order, continued in possession thereof. Subsequently, at the instance of the attorney-general, the orders appointing and continuing the receiver were vacated and set aside.
    Thereafter the receiver applied for the appointment of a referee to pass his accounts, although he had not made, filed, presented or 6erved any inventory, statement or account whatever.

      At the hearing on this petition, preliminary objections were raised, on behalf of the defendant, that the court had no power or jurisdiction to make an order in regard to a receiver in this ease, and, also, that a motion to refer accounts could not be made or entertained till the accounts had been made and iiled with the court.
    The motion was granted and an order appointing a referee to pass the receiver’s accounts was entered on the ninth of August.
    From this order the present appeal is taken.

      Marshall P. Stafford, for the appellant.
    The orders assuming to appoint and continue a receiver were null and void. No authority or power to make such orders can be deduced from the common law. Statute law is the sole source of any such visitorial power in courts over corporations. (.Attorney-General v. Utiea Ins. Co., 2 Johns. Ch., 370; Attorney-General v. Bank of Niagara, Hopkins, 403; Latimer v. Eddy, 46 Barb., 61; Galway v. U. S. S. S. R. Co., 36 id., 259 ; Howe v. Deuel, 43 id., 506; Belmont v. Erie Railway, 52 id., 637; Potter v. Merchants’ Bank, 28 N. Y., 644.) The statutes of this State, conferring upon courts power to appoint receivers o-f corporations, pending a suit by the attorney-general to forfeit their charters and corporate existence, relate only to banking and insurance companies. They confer no power whatever over manufacturing corporations. (2 B. S., p. 464, § 39 [Edm. ed., p. 484].) The act of 1870 expressly excepts manufacturing companies from its operation. (N. Y. Laws of 1870, chap. 151, § 5.) The sole source of, any power to appoint a receiver in such a suit is that contained in section 444 of the Code, which authorizes the appointment of a receiver, only “ when judgment shall have been rendered against a corporation.” (Foster, J., in People v. Northern Railroad Co., 42 N. Y., 242; Ingraham, J., in People v. Washington Joe Co., 18 Abb., 383; People v. N. R. Co., 53 Barb., 124.) A corporation that offends against any provision of its charter, or any of the general laws under which it exists, does not become ipso facto dissolved. It continues to exist until its dissolution is judicially declared by a judgment. (Angelí & Ames on Corporations, § 770; Mickles v. Rochester City Bank, 11 Paige, 118 ; Bank of Niagara v. Johnson, 8 Wend., 645; People v. Manhattan Co., 9 id., 351; People v. Hillsdale Co., 23 id., 254; People v. Washington and W.

      Bank, 6 Cow., 211; People v. Bank of Hudson, id., 217; Attorney-General v. Bank of Niagara, Hopkins, 403.) , An order appointing a referee to pass a receiver’s accounts cannot be made, nor can a motion therefor be entertained until the receiver has filed liia accounts with the court. (Edwards on Receivers, 215 ; Darnell’s Cli. PI. and Pr., 1752; High on Receivers, § 797; Kerr on Receivers [2d ed.], 247, 248 ; 2 Wait’s Pr., 262.)

      George W. Wingate, for the receiver.
    The power of the Supreme Court to appoint a receiver over the property of defendant existed by express statute and under the general equity power of the court. (Code, § 244, par. 4.) When the corporation is insolvent, or in danger of insolvency, a receiver may be appointed before judgment, even upon the application of a stockholder. (Per Ingraham, J., General Term, first district; Ilowe v. Deuel, 43 Barb., 504, 507.) And the right is unquestioned where (as here) the suit is brought by the attorney-general. (Id., 508; People v. Erie P. P., 36 Iiow., 131.) The Supreme' Court had power to appoint a receiver of the defendant under its general equity power. In all cases where the court is satisfied that the plaintiff is entitled to the relief demanded, and it is necessary to preserve the property until the hearing, a receiver will be appointed. ( Verpla/hck v. Mercantile Ins. Co., 2 Paige, 451; Hugueninis v. Basley, 13 Yes., 117.) The court simply takes the matter in its own hands during the litigation. (High on Receivers, 5; Banks v. Potter, 21 How., 469.) The court only requires a prima facie case to grant an injunction and appoint a receiver, and the appointment rests in its sound discretion. (2 Barb. Oh. Pr., 659, note; Kerr on Receivers, 3; Hamilton v. Accessory Transit Go., 3 Abb., 255.) And the court will appoint a receiver of a foreign corporation. (Tinkham v. Borst, 31 Barb., 407; Murray v. Vanderbilt, 39 id., 140; 'la/arence v. Greenwich Fire Ins. Co., 1 Paige, 586, 587.)
   Davis, P. J.:

The receiver in this case was appointed on an ex parte application, but his appointment was continued by a further order of the Special Term after hearing - the parties to the action. There can be little doubt that the appointment -vas mprovidently made, and ■none, that the action of the Attorney-General, when the case was brought to his personal notice, in stipulating that the order making such appointment be vacated, was eminently proper and just.

It is insisted, however, on the part of the appellant, that the orders appointing the receiver were absolutely void for want of jurisdiction in the court.

We think this proposition cannot be maintained. The court had jurisdiction of the suit and its subject-matter, and of the parties, and even if the court was altogether mistaken in supposing that it had power, in such an action as this, to appoint a receiver before judgment, its order would not be absolutely void so that it could be wholly disregarded by the parties, but the remedy of the injured party must be sought by appeal. The order of reference appealed from cannot, therefore, be regarded as an excess of power and set aside on that ground. It ought not, however, upon the facts presented to the court, to have been made. The petition of the receiver fails to show that he had filed or presented any account, as the established practice of the court requires. It states his claim in the most general and indefinite manner. The parties had no information of what he claimed to be entitled to, either for his compensation or his disbursements and expenses. It was his duty to have first filed his account or presented it with his petition, so that the parties against whom it is claimed might have an opportunity to determine whether they were willing to consent to the same without the expense of a reference, and the court also might have had an opportunity, to pass upon the petition of the receiver with a better understanding of the nature and extent of his claim. (Edwards on Receivers, 215; Kerr on Receivers, 247, 248; 2 Wait’s Pr., 262.) To sustain the order as made would introduce a looseness of practice in such cases which might lead to great abuses. The receiver would be at liberty to present before the referee, without any restraint, whatever claims he might choose to set up, and thus open a field of controversy far broader than any intended to be permitted by the established practice. There should, before the order of reference is made in such cases, be presented a full and definite account, itemizing, with particularity, the various claims made by the receiver, verified also by his oath; and the reference should relate specifically to the claims presented in that form. It appears, by the affidavit of the appellant’s counsel, that this point was specifically raised in the court below, and we find nothing in the papers in conflict with that statement.

Under such circumstances the order should be reversed, but without prejudice to a renewal of the motion by the receiver after or ujion filing his account, as required by the practice.

Beady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed without prejudice to a renewal of the motion by the receiver after or upon filing his account.


text:
    JOHN FOLEY, Appellant, v. CHARLES L. RATHBORNE.

      Special proceeding— adjustment of costs in — Failure to pay costs of previous motions when proceeding stayed because of.

    Upon a motion for a readjustment of costs, on the ground that they had accrued in a special proceeding and not in an action, and that they should have been adjusted by the court and not by the clerk, it appeared that an appeal had been taken from the taxation by the clerk and heard before a justice of the court and a readjustment ordered to be made by the clerk, which was accordingly had.

      Held, that even if it were a special proceeding, the readjustment had in pursu anee of the action of the justice was a sufficient compliance with the provisions of section 311 of the Code.
    The appellant had made a number of motions against the respondent, in which he had been defeated, and costs to the amount of $230 had been awarded to the respondent, which the appellant declined to pay, but still continued to make motions against him.

      Held, that an order staying proceedings, on the part of the plaintiff, until the payment of the costs that had already accrued, was proper and should be affirmed.
    Appeal from an order denying a motion for the readjustment of the costs awarded to Charles E. Wet-more; and also from an order staying all of plaintiff’s proceedings by reason of the non-payment of certain costs theretofore allowed to said Wctmore.

      It appears that on the 14th day of May, 1876, Charles F. "Wet-more was directed by the court to appear before Samuel W. Brown, Esq., as referee, on the 21st day of May, 1876, under certain supplementary proceedings instituted by the plaintiff to enforce the judgment in this action. For a failure to answer a question before the referee, he was adjudicated guilty of a contempt of this court and fined the amount of the judgment. An appeal was taken' by Wetmore to the General Term of this court from the order imposing the fine in the contempt proceedings, and also from an order made in this action on the 16th day of May, 1876, dismissing a motion made by Wetmore to vacate an injunction forbidding the Continental Bank from disposing of certain moneys, and also from an order made on the 19th day of May, 1876, denying the motion of Wetmore to resettle the order of May 16, 1876.
    On appeal to this court all of said orders were reversed, with ten dollars costs and disbursements of the appeals.
    Plaintiff continued to make motions against Wetmore, at the same time refusing to pay the costs awarded to him.

      James Henderson and Henry G. Henison,

    for the appellant. Proceedings to punish a party for a contempt in violating an order issued in supplementary jiroceedings are special proceedings and not actions. (Ilolstein v. Dice, 24 IIow., 135 ; S. C., 15 Abb. Pr., 307; Gray v. GooTc, 15 id., 308; former Code, § 2.) A proceeding to enforce a judgment under contempt proceedings being a special proceeding and not a civil action, the costs are such as the Revised Statutes prescribe, and cannot be. allowed or adjusted under the Code. (2 Rev. Stat., 619, §§ 39, 42; Code, §§ 1, 3, 303, 471; Gray v. Cook, 15 Abb. Pr., 308 ; former Code, § 311; Brown v. Leigh, 50 N. Y., 429.)

      Goudert Brothers, for respondent Wetmore.
    The courts have authority to stay proceedings by litigants until payment of costs of former proceedings instigated by them. {Dresser v. Cooke, 5 How. Pr., 75 ; Adams v. Bush, 2 Abb. [N. S.], 116; Hill v. Grant, 2 Sup. Ct. [T. & C.], 469; Kentish v. Tatham, 6 Hill, 372; Old Code, § 315 ; Thaule v. Frost, 1 Abb. [N. C.j, 298.)
   Davis, P. J.:

It is claimed that tlie costs in this case have accrued in a special proceeding and not in an action, and, that under section 311 of the Code they should bo adjusted before a judge or court, or in such other manner as the judge or court should direct. Assuming this position to be entirely correct, yet the order of readjustment made by Mr. Justice Barret, and the readjustment by the clerk in pursuance of that order were a sufficient compliance with section 311. The denial of the motion by Mr. Justice Gilbert for a readjustment was entirely proper and should be affirmed, with ten dollars costs and disbursements of this appeal to be adjusted by the clerk.

The second appeal contained in the same papers is from an order staying the proceedings on the part of the appellant until he shall have paid costs that have accrued from time to time therein. It appears that costs had accrued in favor of Wetmore, the respondent herein, amounting to about $230 which the appellant had declined to pay, while he continued to make divers other motions against Wetmore. The court, on Wetmore’s motion, ordered that the plaintiff’s proceedings be stayed until the payment of the costs already accrued and allowed.

This was not a statutory stay of proceedings under section 315 of the former Code, but an order made by the court in the exercise of its discretion to stay vexatious and annoying proceedings until the party pursuing them should have paid the costs already accrued. It was in this case an eminently proper one, and not only has abundant authority for its support, but is fully justified by the facts appearing in the case. (Dresser v. Brooks, 5 How. Pr., 75 ; Adams v. Bush, 2 Abb. [N. S.], 116 ; Hill v. Grant, 2 Sup. Court [T. & C.], 469 ; Kentish v. Tatham, 6 Hill, 372; Thaule v. Frost, 1 Abb. [N. C.], 298.)

The appeal should be dismissed with ten dollars costs and disbursements to be adjusted by the clerk.

Brady, J. concurred.

Present — Davis, P. J., Bradley and Daniels, JJ.

Order affirmed with ton dollars costs and disbursements; appeal dismissed with ten dollars costs and disbursements.


author: Daniels, J.: Brady, J.:

text:
    JAMES W. NASH, Appellant, v. GEORGE KEMP, Respondent.

      Party-wall — right to cover front of — Conveyance of land held adversely — what is — Estoppel. •
    The plaintiff and one Livermore being the owners of adjoining lots on the east sida of Fifth avenue, in the city of New York, entered into an agreement for the erection of a party-wall, fourteen inches of which was to be on the Livermore lot, and two inches on that of plaintiff. The wall was subsequently erected in pursuance of the agreement. Plaintiff built a house, the front wall of which was of brick, faced with brown stone. The brick portion of the front wall and the southerly eight inches of the party-wall were securely fastened together, in the customary manner, at their intersection on the avenue, and the brown stone extended in front of it so as to cover the southerly eight inches, or one-half of the party-wall.

      Held, that he had no right to place the brown stone in front of that portion of the party-wall which rested upon the Livermore lot, and that defendant, as her grantee, could compel him to remove the same.
    That the fact that the defendant acquired title to the Livermore lot after the plaintiff’s house had been completed, did not affect the question, as the claim to thus cover the party-wall was not made under a title adverse to that of the grantor, which the statute required in order to make the deed from Livermore to the defendant void.
    That the defendant was not estopped by the fact that her agent had passed by and observed the building while in process of 'erection, and had supposed that the plaintiff’s front wall extended to the center of the party-wall.
    Appeal.from a judgment recovered on trial at Special Term, dismissing tlie plaintiffs complaint.
    This action was brought to prevent the defendant from interfering with the plaintiffs use up to the center line thereof, of the front of a party-wall between their respective houses; the defendant having threatened to cut away and remove from the front of a portion of said party-wall certain stone trimmings and thereby greatly mar and disfigure the plaintiff’s house.

      Richa/rd S. Newcomb and Albert Oardozo, for the appellant.
    The plaintiff was in actual possession of the premises in dispute when the defendant bought. He, therefore, had notice of Mr. Nash’s right. To the extent that Nash held possession, the conveyanee to Kemp was void. (1 Stat. at Large, p. 690, § 147; Sherry v. Freaking, 4 Drier, 452.) In the absence of any thing showing that the parties meant otherwise by force of the term “ party-wall,” each obtained equal rights in that wall. Plaintiff will not have equal rights in it if he cannot use half of it on the front. (Wash-burn on Easements, 564.) It makes no difference that it does not stand equally on each lot. It may be a party-wall, though more on one than the other lot, or if wholly on one lot. (Id., 568; Brondag?■ v. Warner, 2 Ilill, 145 ; Rogers v. Sinsheimer, 50 N. Y., 647.) A party and a common wall mean the same. (Campbell v. Mesier, 4 Johns. Ch., 334; Washburn, 570.)

      Joseph U. Choate, for the respondent.
   Daniels, J.:

The plaintiff and defendant own adjoining lots on the easterly side of Eiftli avenue, in the city of New York. The defendant’s lot is thirty feet in width and of the depth of 100 feet. It is bounded on the north by Fiftieth street and a portion of the Buckingham hotel has been erected upon it. lie derived his title to it from Sarah A. Livermore after the plaintiff had erected a dwelling upon his lot, which is twenty-five feet in width and of the same depth as the defendant’s lot. Before the dwelling was erected, and while the lots were owned by the plaintiff and Sarah A. Livermore respectively, they entered into an agreement for the erection of a party-wall. It was provided then that it should be erected fourteen inches on the lot now owned by the defendant, and two inches on the plaintiff’s lot; that it should be at least four stories in bight above the basement, and seventy feet in length along the northerly side of the building to be erected by the plaintiff; and the evidence in the case has established the fact that the wall was built as the agreement specified that it should be. The front wall of the plaintiff’s building was faced with brown stone, but the inside portion was built of brick, the same as the division wall, and both were built in together at the corner as brick walls are usually put up. For the purpose of allowing that to be done the party-wall had been extended west toward the avenue to a point ten inches easterly therefrom. From that point the southerly eight inches of the wall was prolonged six inches further toward the avenue, and the brick portion of the front wall of the plaintiff’s dwelling was built at the corner by being toothed and blocked into that. It was also further secured to the party-wall by two diagonal anchors in each stay embedded in each wall to the extent of half their thickness. The northerly half of the party-wall, at its westerly end, was -left at the distance of ten inches from the avenue, and the space of four inches southerly therefrom between the face of the front brick wall, and the line of the avenue was wholly used for putting up the brown-stone front of the plaintiff’s dwelling. The ashlar, or brown-stone facing, was anchored, as it was put up, to the brick wall behind it, and it was extended northerly to the center of the party-wall. By erecting it in that manner this brownstone facing was made to stand upon and occupy so much of the adjoining lot upon the north as intervened between the front of the brick wall and the line of the avenue and the northerly line of the plaintiff’s lot and the center line of the party-wall, which formed a space of six inches fronting upon the avenue by four in depth.

When the defendant erected the building placed upon his lot he proposed to use that space for the extension of its front to his own southerly line, and for that purpose to remove so much of the brownstone portion of the plaintiff’s front wall as was necessary to enable him to do that. To prevent that from being done this action was commenced, and an injunction was issued prohibiting and restraining the execution of that design. It appeared upon the trial that so much of the front wall built by the plaintiff could be removed and replaced as the defendant intended to build it, without impairing the strength or durability of his building, or seriously interfering with its appearance.

The learned judge presiding at the trial held that the plaintiff had no right to occupy the space in controversy by the northerly portion of the brown-stone facing of the front wall of his dwelling, and for that reason directed a dismissal of the complaint.

His ojiinion stating the reasons which had induced that conclusion, has been reported and will be found in Nash v. Kemp (49 Howard, 522).

It has been insisted in the case that the deed executed and delivered by Sarah A. Livermore to the defendant, conveyed nr title to the space in controversy, because it was at that time in the possession of the plaintiff as an adverse claimant. But it is plain that the claim was not made under a title, and for that reason it could not be attended with such a result. To render the deed void the statute required that there should be not only possession by some other person than the grantor, but in addition to that the further fact that it should also be under a title adverse to that of the grantor (3 B. S. [5th ed.], 30, § 16Y), and full effect has been in that manner secured to its language in this respect by the decisions which have been made upon the consideration of the provision. (Crary v. Goodman, 22 N. Y., 170; Hallas v. Bell, 53 Barb., 247; Christie v. Gage, 2 N. Y. S. C. [T. & C.], 344; Stevens v. Hauser, 39 N. Y., 302.) In this case there was no such adverse title as the statute has provided shall avoid the deed of the grantor. And there could not be such a title very well under the terms of the agreement made for the erection of the party-wall. Bor it was provided by the instrument, made for that purpose, “ that no part of the land upon which said wall, or any extension thereof shall be constructed, shall pass to or be vested in either of the parties hereto by virtue of this agreement.” The plaintiff claimed no other right than those secured to him by that agreement, and if he derived none from that source then he occupied the land in controversy without any adverse title to it whatsoever.

The wall which, by the agreement made was to be built, was the northerly wall of the building the plaintiff was about to erect. It contained no provision whatever concerning the front wall of such building, and consequently it in no way regulated or governed its mode of construction farther than that it must be necessarily united with the party-wall to complete its erection. That could be rendered available in the erection of the building only by properly connecting it with and building it into the front wall, and it was fashioned and terminated at its westerly end so as to be adapted to that object, In that respect it was constructed as the evidence proved such walls to be ordinarily erected in the city of New York. The object was to secure a firm and durable connection with the front wall, and that was shown to have been wholly accomplished by the manner in which the brick portion of the front wall was built into and secured to the end of the party-wall, and concerning which no com plaint has been made by tbe defendant. To that extent it was to be inferred, from the agreement made, that the plaintiff was at liberty to go. For it was only in that way that he could obtain the right intended to be secured to him by the party-wall. (Rogers v. Sinsheimer, 50 N. Y., 646.) But the necessity which would justify him in making that use of the extremity of the party-w'all could not reasonably be extended any farther, and. the manner in which the plaintiff constructed it showed such to have been hi? own understanding of his right; for he did not project the partj wall to the line of the avenue, but terminated it so far eastwardly from that line as to enable him to build and properly connect his front brick wall with it and still have space enough between it and that line for the stone facing placed upon the front of the lot. That facing was no part of the party-wall. It was neither so in theory nor according to the manner in which the party-wall- had been placed upon the premises. It was rattier the ornamental facing of the front wall as it had already been built and united to the other. And for that reason the agreement secured the plaintiff no authority to place it upon the defendant’s property. That was wholly restricted to the northerly wall of the building to be erected by the plaintiff, and it was simply to be “ a party-wall between the said building so to be erected by the said party of the first part, and any building which may hereafter be erected by the said party of the second part upon the land owned by her.” That, with the right to use the wall as it should be required in the erection of his building, was all that the agreement secured him, and he enjoyed that as the work was afterward performed by erecting and uniting the front brick wall with the party-wall, without occupying any part of the space now in dispute. He put no part either of the party-wall or of the front brick wall to which the stone facing was secured upon that piece of ground, and he had no right to use it with that facing for the reason that it was not in any way required for its security, or that of the front brick wall which had been properly built into and connected with the front end of the party-wall without it. This piece of ground was the property of the defendant, and it had been subjected to no easement by the agreement, and was required for none in order to give the plaintiff’s building the full benefit of the party-wall. For that reason, 1 aving this title to the land, the defendant conld properly and lawfully use it in the erection and completion of his own building, as he proposed to do when he was restrained and enjoined by the order of the court.

The right of enjoyment by possession followed from the fact that he was the legal owner as long as neither the agreement he had made nor the proper uses of the wall itself, nor dny other reasonable necessity existed for its occupancy by the plaintiff for the erection or security of the stone facing placed upon the front of his dwelling.

The authorities cited and relied upon do not sustain the position taken on the plaintiff’s behalf. But they justify the conclusion upon which the judgment has been recovered; and that, in substance, was, as the land in controversy was not required for or used by the party-wall, nor for securely uniting the front of the wall of the plaintiff’s building with it, that he could not occupy it merely for the purpose of extending the brown-stone facing over it when that was in no way needed to complete or securely maintain it. (Washburne on Easements, etc., [3d ed.], 564; Fettretch v. Leamy, 9 Bosw., 510 ; Partridge v. Gilbert, 15 N. Y., 601; Rogers v. Sinsheimer, supra; Ogden v. Jones, 2 Bosw., 685; Duncan v. Haubert, 2 Brewster, Pa., 362.)

It has also been claimed that the grantor of the defendant had so far acquiesced in the extension of the plaintiff’s front wall, as to estop him from controverting the legal validity of the act. But the evidence upon that subject was too slight to be attended with such an important result. At the most it merely showed that her brother having the supervision of her property for her, had, in passing by, observed the building while it was in the progress of erection, and supposed the front wall was extended to the center of the party-wall. But he did nothing by way of inducing or approving of such an extension of the brown-stone facing. That was altogether insufficient to create an estoppel, even if his mere omission to object could have prejudiced the rights of the grantor He asserted nothing and did nothing justifying the plaintiff in believing that he intended, on the part of the owner, to sanction the appropriation which was made of this piece of land. And even if he had, it is not probable that he could, in that way, have deprived her of apportion of her real estate. (Babcock v. Utter, 1 Keyes, 115, 397; Corning v. Troy Iron and Nail Factory, 40 N. Y., 192; Selden v. Del. and Hud. Canal Co., 29 id., 634, 639.)

Objections were taken to evidence received during tlie trial showing tlie manner in which party-walls had usually been built in the city of New York; and they have been relied upon in support of the appeal. But as the rights of the parties have been considered upon the basis of the agreement entered into, and the practical effect given to it by the acts of the plaintiff, no examination of them can be required to determine the proper disposition which should be made of this case. For the reasons already assigned, and others given in the opinion delivered at Special Term, the judgment should be affirmed, with costs.

Brady, J.:

Although there are reasons why, perhaps, a dissenting view might be expressed, yet, upon a careful and reflective examination of the question involved, I think the conclusions of brother Daniels should be adopted. I concur, therefore.

Present — Davis, P. J., Brady and Daniels, JJ.

J udgment affirmed, with costs.