author: Van Brunt, P. J.

text:
    Joseph Lentilhon et al., Resp’ts, v. Williamson Bacon, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Depositions—Open commission.
    An open commission to examine .witnesses should not he granted on motion of the plaintiff without the strongest and most convincing reasons. The mere fact that the witnesses to be examined sustain business relations and are on friendly terms with the defendant, and would be unwilling witnesses for plaintiff, is not sufficient to warrant such an order.
    Appeal from order of special term, directing the issuance of a. commission to také testimony upon oral interrogatories. The for the order was made the following affidavit:
    “Joseph Lentilhon, being duly sworn, deposes and says (1) that he is one of the plaintiffs in the above entitled action, and that all the parties thereto are of full age and competent. (2) That issues of fact have been joined herein by the service on the 24th day of February, 1892, of the defendant’s answer to the complaint herein. That the said cause has been placed upon the general calendar of this court, and is numbered 3,939, and that the next circuit of this court is appointed to be held on the first Monday of October next. (3) That the action was brought to recover the sum of $16,230.52 and interest alleged to be due from the defendant to the plaintiffs, and which -(or any part whereof) said defendant promised and agreed to pay to the plaintiffs when it was in his power so to do. That deponent is informed and bell eves that the said defendant has it in his power to pay said sum so due as aforesaid, but that he refuses to pay the same, or any part thereof, although payment thereof has been demanded. (4) That the issues of fact are substantially as follows: First. Whether or not the above named defendant has it in his power to pay the said sum of $16,230.52 and interest, or any part thereof. Second. Whether the said action is barred by the statute of limitations.^ (5) That deponent has fully and fairly stated the case in this action to-James G. Jane way, Esq., his counsel, who resides at No. 131 East Nineteenth street, in the city of New York, and has fully and fairly disclosed to him the facts which he expects to prove to substantiate the affirmative of the first and the negative of the second of the foregoing issues, and that he cannot safely proceed to the trial of the action without first obtaining due proof thereof by the examination of persons who are or have been residents of the states, of Missouri and Kentucky, as he is advised by his said counsel after such statement, and verily believes. - (6) That, in order to enable deponent to sustain the affirmative of the first of the said issues herein mentioned in the fourth paragraph of this affidavit, it will be necessary for deponent to show the financial condition and ability of the defendant and the nature and extent of the property of which he is possessed ; and, to sustain the negative of the second of said issues, to show how long the defendant has been possessed of such property, and how long it has been in the power of the defendant to pay the claim of the plaintiffs herein, or some part thereof, and when the cause of action herein accrued by reason of the ability of the defendant so to do, and the residence and absence of said defendant without the state of New York. That the defendant lives, and for a considerable time has lived, in or near the city of St. Louis, in the state of Missouri, and been engaged there in the prosecution of business and in the acquisition of property. (7) That deponent expects to be able to prove by the following witnesses the nature and extent of the property of the-defendant, and when and how the same was acquired, and also the-facts relating to the residence of the said defendant, to wit: The said defendant, Williamson Bacon; Moses Greenwood, Jr., areal estate agent employed for some years last past by the defendant, and! William J. Burton, a bookkeeper of the Tyler estate, in which-said defendant is interested, and of which he is manager, as deponent is informed and believes; Samuel Hoffman and James B„ True, respectively president and cashier of the Laclede National-. Bank of St. Louis, of which said defendant is a director, and in which he owns or holds stock, as deponent is informed and believes; Julius Walsh and Breckenridge Jones, respectively president and secretary of the Mississippi Valley Trust Company of St. Louis, of which said defendant is a director, and in which he owns or holds stock, as deponent is informed and believes; C. 0. Rainwater, John D. Perry and John H. Overall, respectively president, treasurer and secretary of the St. Louis Merchants' Bridge Terminal Railway Company, in which said defendant owns or holds stock, as deponent is informed and believes : E. A Hitchcock, C. W. Barnes and E. T. Allen, respectively president, treasurer and secretary of the Crystal Plate Glass Company, in which ¿aid company said defendant owns or controls stock, as deponent is informed and believes. That all of said above-mentioned persons reside or transact business in St. Louis, Missouri, as deponent is informed and believes. (8) That in the nature of. the case, the defendant will be an unwilling witness for plaintiffs, and it will be impossible to obtain from him, by examination on written interrogatories, a full and fair statement of the facts known •to him relating to the issues in the action. (9) That, as deponent is informed and believes, all of the above-mentioned persons sought to be examined by plaintiffs have sustained long continued business relations with the defendant, and are more or less on .friendly terms with the defendant That, as deponent is informed .and believes, all of the aforementioned persons are unwilling and reluctant witnesses for plaintiffs, and will avoid testifying to the .facts within their knowledge respecting the issues in this action, unless the same can be elicited from them' by an oral cross examination. That deponent has caused inquiries to be made of most of ■the aforementioned persons as to the facts within their knowledge, but that the said persons are unwilling and reluctant to give any information whatever, and that an oral cross-examination of said-witnesses is, as yourdeponént is informed and believes, absolutely •necessary, in order to obtain a full and truthful statement of the facts within their knowledge relative to the issues of this action. That, as has been hereinbefore set forth, the persons sought to be examined .as witnesses on the part of the plaintiffs occupy personal and business relations with the defendant, and are unknown to the plaintiffs, .and from the very nature of their relations will be reluctant to assist the plaintiffs, or to give them any information or assistance whatsoever. (10) Deponent is informed that there are other witnesses in the city of St. Louis, in the state of Missouri, whose testimony is necessary and material for the trial of the action, but whose names deponent has been unable, after due. diligence, to •.ascertain. That the facts as to financial condition are in their nature such as cannot reasonably be expected to be ascertained by .an examination on written interrogatories, and that, upon the examination, it will be necessary to introduce in evidence books and entries therein, and to examine the witnesses with reference thereto, to which said books and entries plaintiffs have no means cf access, excepting as they shall be produced on such examination, and as to which they cannot, therefore, frame interrogatories. ■¡(11) That the deponent also expects to prove by the following witnesses the facts with relation to the actual residence and -domicil' of said defendant from the year 1889 to the time of the commencement of this action: Philip H. Zepp, clerk of the circuit court of St. Louis; William A. Hobbs, recorder of deeds of the city of St. Louis; James L. Carlisle, recorder of voters; R. A. •Campbell, controller; John J. O’Brien, president of, board of .assessors. That all of said persons reside in the city of St. Louis, as deponent is informed and believes. (12) Deponent further says that plaintiffs have caused the utmost efforts to be made to find some person or persons residing in the state who have sufficient knowledge of the facts they expect to prove by the witnesses residing in the state of Missouri as aforesaid, and that they have not succeeded, and that there are no persons now residing within this state, to the knowledge of the plaintiffs or this deponent, by ■whom such facts, or any of them, can be proved. (13) Your deponent further says that it is necessary for the furtherance of the ends of justice that an open commission should issue out of this court, directed to some suitable person resident in the city of St. Louis, authorizing him to examine orally, relative to the issues-of this action, any witnesses who may be produced by either party. (14) Deponent further says that, under the circumstances in this case, a commission authorizing the taking of depositions or the answering of interrogatories to be here settled will not meet the requirements of the case, nor can the plaintiffs thereby obtain from the several material witnesses, as aforesaid, a full and impartial statement of the facts within their knowledge, as he is advised by counsel and verily believes. (15} That the defendant resides at St. Louis, and has counsel at that, place, as deponent is informed and believes; and that no injury or extraordinary expenses will result to him because of the taking-of the evidence under an oral commission. (16) That Miss Roberta Tyler, who resides at Louisville, Kentucky, is a sister-in-law of the defendant, and acquainted with facts of his residence, and has made affidavits with regard thereto in other proceedings, and is a material witness for the plaintiffs, as deponent is informed and believes, upon the said question of the residence of said defendant. (17) That this deponent has fully and fairly stated to-his said counsel the facts .which plaintiffs expect to prove by said witness; that said witness is a material and necessary witness for the plaintiffs on the trial of said action, as he is advised by his-said counsel after such statement and verily believes. (18) That, deponent is desirous of taking the deposition of said Miss Roberta. Tyler upon written interrogatories to be settled (19) That the sources of deponent’s information, and the grounds of his belief as to all matters not herein stated upon his own knowledge and information,are communications by letter to deponent’s said counsel by Albert 1ST. Edwards, Esq., counselor .at law, St. Louis, Missouri, whom deponent caused to be employed for the purpose of assisting in obtaining the evidence necessary to sustain the issues-upon the part of the plaintiffs, statements made to deponent by his said counsel and attorneys, besides his own knowledge as such) plaintiff.”

      F. E. Blackwell, for app’lt; James G. Janeway, for resp’ts.
   Van Brunt, P. J.

It is the well settled rule that an open-commission should never be granted, except under peculiar circumstances, and certainly not upon the motion of the plaintiff without the strongest and most convincing reasons, as the granting of such a motion upon behalf of the plaintiff would simply be-transferring the trial of the cause to a jurisdiction different from that in which he has seen fit to place the venue. No facts whatever justifying the order in question are disclosed by the papers, upon which this motion was granted. It may be more convenient, for the plaintiffs to transfer the trial of the cause to some other jurisdiction, but this affords no ground for granting this extraordinary relief.

The order should, therefore, be reversed, with ten dollars caste. and disbursements, and the motion denied with ten dollars costs, with leave, upon payment of the costs of the motion of this appeal, for the plaintiffs to move for a commission upon interrogatories.

O’Brien and Lawrence, JJ., concur.


source: Caselaw Access Project

author: Patterson, J.

license: Public Domain

text:
    In the Matter of Opening Wendover Avenue.

      (Supreme Court, General Term,, First Department,

      Filed October 20, 1892.)

    1. Motions and orders—Resettlement —Affidavit.
    On motion to confirm the report of commissioners of assessment, an affidavit was read in opposition which consisted mainly of an argument by counsel. Held, that it was within the discretion of the court to permit it to be recited in the order, and that it was not an abuse of such discretion to refuse to grant such permission.
    3. Eminent domain—Opening streets—Assessment.
    The question of the amount of assessment for local improvements is one within the exclusive jurisdiction of the commissioners, and their conclusions will not be disturbed so long as they have been honestly and fairly made and no erroneous principle adopted.
    3. Same.
    Where the commissioners, after the preliminary estimate, discover that certain property has been assessed for a greater amount than that allowed by the statute, they do not'exceed their lawful authority by distributing the amount of such excess among the other property benefited, so long as such other properly is not assessed for a greater amount than the benefit received or than that allowed by the statute. In such case the commissioners are not required to return such amount as unassessable under § 994 of the consolidation act.
    Appeal from order denying motion for resettlement of an order confirming the report of the commissioners of estimate and Assessment.

      J. F. H. Baldwin, for app’lt; W. H. Clark and Carroll Berry, for resp’t.
   Patterson, J.

Concerning the order denying the application to resettle the final order confirming the report of the commissioners, by reciting therein that a certain affidavit was presented And read in opposition to the motion, it is sufficient to say that such affidavit (which by stipulation was printed with the record simply for the inspection of the court) was not of such a character as entitled the appellant to submit it as a matter of right; but it was within the discretion of the court to permit, it to be put in; that such permission was not given appears from the order of the -court, refusing to have it recited as.being amonp; the papers used -on the motion, and after considering this affidavit, we see no cause for differing with the learned judge below respecting his decision concerning it, if for no other reason than that it is, in the main, nothing but an argument of counsel in the form of proof, the learned judge below was right in refusing to consider it. It may be convenient for use as a statement of counsel’s views of ■the commissioners’ proceedings, but as a brief it gains no additional force by being verified, and the order denying the motion to re-settle by including this affidavit in the motion papers, is a£firmed, with ten dollars ($10) costs. The objections urged to the final order relate to the assessment for.benefit to property belonging to the New York & Harlem E. E. Company, which was included by the commissioners within the area of assessment for the improvement of opening Wendover avenue. Our attention has been called by the appellant to various matters claimed to be errors on the part of the commissioners, respecting the amounts assessed upon it for the improvement. It has been frequently held that the question of the amount of assessment is one within the exclusive jurisdiction of the commissioners, who act in that regard very much as a jury, and their conclusions will not be disturbed so long as they have been honestly and fairly made. Matter of Boston Road, 27 Hun, 409; Matter of Broadway Widening, 63 Barb., 575; Matter of William and Anthony Streets, 19 Wend., 694.

The only ground upon which we can reconsider the action of the commissioners in this matter would be that of their having adopted an erroneous principle in determining what assessments should be made upon the appellant’s property. It is claimed that there was a radical error in the proceedings of the commissioners in this respect; that they have increased the assessment upon the appellant’s lots by so much as they were unable to assess upon lots of other parties by reason of such other lots not being assessable under tire law up to the full measure of the benefit which they were to receive by the improvement. The_ facts which appear upon the record and which give rise to this question as to the correctness of the principle of assessment adopted by the commissioners, are the following: In the preliminary estimate made by the commissioners, the assessment upon the appellant’s lots was $3,898.16. Subsequently, and in the final report, the assessment was increased to $8,378.13.

The commissioners, in their report, state that the reason for this increase was that certain other property which they had in their preliminary estimate assessed at a certain sum could not be lawfully assessed at the figures adopted, for the reason that, by a provision of the consolidation act, the assessment could not exceed one-half of the assessed value for general taxation of those lots, and that necessitated a reduction of the assessment for this particular improvement of those other lots. The amount of ■ the diminution of the assessment on the other lots than those of the defendant, thus necessitated by reason of the provision of law referred to, was charged over in part on the defendant’s lots. The practical question arising, therefore, is, were the commissioners acting within their lawful authority when they thus increased the assessment upon the appellant’s lots by adding to the preliminary estimate the proportionate amount of the deficiency not realizable from property as to the assessment of which they were limited by the law referred to.

It appears from the report of the commissioners that the assessment levied upon the appellant’s lots has not been arbitrarily-made ; that in their judgment the benefit derived by the defendant’s property from the improvement is equal to the amount of the burden cast upon it by the assessment, and is within one-half of the assessed value, and," therefore, the question is reduced to the very simple one as to the power of the commissioners to levy the assessment in the manner ;pursued by them. ' This question arises in the first place as to the. authority these commissioners possessed respecting the assessment It would appear from § 994 of the consolidation act they had the right to determine whether the whole- cost and expense of the improvement should be assessed upon the property deemed to be benefited pursuant to § -970 of the act. They did determine that the whole expense should be borne by the property benefited. Section 970 provides that they shall make a just and equitable estimate and assessment of the loss and damage over and above the benefit and advantage, or the benefit and advantage over and above the loss and damage, as the case may be, to the respective owners entitled to, or interested in, the lands and premises taken for the street, and that as to lands above Fifty-ninth street the commissioners may assess therefor all such lands and tenements as they may deem so-benefited by such improvement to the extent and amount which they may deem such lands and tenements benefited thereby.

By § 958 of the consolidation act, it is provided that the commissioners may assess for street opening, persons, lands and tenements as they may deem to be benefited by such improvement to the extent which said commissioners of estimate and assessment deem such persons, lands and tenements so benefited thereby, provided that as to the streets, avenues or roads which shall be in opinion of the said commissioners of estimate and assessment, a majority of them, more than one mile in' length, not more than one-half of the amount awarded for damages and of the expenses attending such opening shall be so assessed; the amount of such damages and expenses not so assessed being thereby made a charge upon the city of New York to be paid as thereinafter provided. Section 967 contains a provision to the same effect.

We think that the commissioners, under the provisions of the consolidation act, had the right to limit the area of assessment, and as the contemplated improvement of the opening of Wend-over avenue was less than a mile in length, to assess the whole cost, and expense of the improvement upon the property benefited thereby, or, in other words, to make it what is called a local assessment. This being so, the property benefited was called upon to bear the entire charge; no one piece could of course be burdened beyond the amount of benefit accruing, but it was within the competency of the commissioners to so distribute the total amount of as to realize that amount from the property so benefited, and that is what they have done in this particular" matter. The lands of the appellant are not' called upon to contribute beyond the amount of the benefit to them, and what is called the inequality of the" procedure in this assessment is not an inequality arising from anything else than the inhibition of the statute upon assessing other lands beyond one-half of their value as assessed for general purposes of taxation. There is nothing unequal or unfair In that. It results from a positive ’ statute. The commissioners were restrained by the express provision of law. They had reached the limit of their power to assess, but because they could not fix a higher rate upon one piece of property, it did not necessarily prevent their charging a proportionate share of the whole improvement upon other property concededly benefited to the extent to which it was assessed, and within the limitation of the law upon their power or right to assess. The contention of the appellant, stated in its own words, is that inasmuch as the commissioners struck off from their preliminary estimate the assessment on lots beyond the extent to which they might go, of the half tax valuation of such lots, it was their duty to return the amount so stricken off on account of the half tax value as not assessable by them to the board of assessors, and that it was for the board of assessors to make up the deficiency pursuant to § 994 of the Consolidation act, or, in other words, that the difference between the amount originally laid upon the lands other than the appellant’s and the amount to which the assessment of such other lands was reduced, should have been returned as a non-assessable amount; but we do not regard the section referred to as operating in this matter in the way claimed by the learned counsel for the appellant What is required by that section is, that the amounts upon property which cannot be assessed at all for the improvement are to be returned and provided for as therein enacted, but where the whole amount of the assessment can be realized from property properly assessable and within the limit of benefit to be derived, and where the determination of the commissioners is that the whole assessment shall be realized out of the property benefited, the section last referred to does not apply, and it was not the duty of the commissioners in this particular case to return the amounts referred to to the board of assessors for them to realize in' the way pointed out by § 994. The assessment as levied, according to the report of the commissioners, was not in excess of the benefit to the property of the appellant, and the whole cost of the assessment was properly distributed, for the reason that the limitation of value to the one-half of the taxable value is a legislative determination of what is an equitable and just amount to be levied upon property benefited by an improvement of this character, and it is sufficient that the commissioners adopted as a value that which the legislature has said was a proper criterion under such circumstances; and inasmuch as no greater burden is imposed upon the appellant’s property than the benefit received by it, we think that the commissioners did not adopt an erroneous principle, and that we would not be justified, therefore, in doing other wise than affirming the order of the court below, which confirmed their report.

Order affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Van Brunt, P. J., concurs in result.


author: Putnam, J. Herrick, J.

text:
    Horace J. Allen, Resp’t, v. George W. Sisson et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Bills and notes—Notes executed by commissioner for improvements —Personal liability.
    One P. performed services for the defendants as commissioner, and they executed their promissory note therefor, signed as “ Commissioners of Racket River Reservoir.” The hoard had the right to order the assessors appointed therefor to levy assessments to pay for the improvements, and to collect the same, but failed to order an assessment to pay said note or to collect assessments already made. Held, that defendants, by their failure to order such assessment or to collect those already made, became personally liable on said note.
    2. Same—Personal liability for note executed by commissioners UNDER UNCONSTITUTIONAL LAW.
    Even if the law appointing defendants commissioners was unconstitutional, they would ne liable on their note, for having employed P. and received the benefit of his labor, they must pay him.
    3. Officers—Power conferred by statute—Rights inferred.
    Where the right to compel assessors to levy assessments is necessary to make effectual the power conferred upon a hoard of commissioners to make and maintain reservoirs, such right will be inferred.
    Appeal from a j udgment in favor of plaintiff rendered after a trial at circuit without a jury.
    Action upon a promissory note given by defendants for services rendered them as a board of commissioners for improvements on the Racket river and signed by them as commissioners.

      John A. Vance, for app’lts; M H. Neary, for resp’ts.
   Putnam, J.

This action is brought upon a note of which the following is a copy:

“$846.82 Potsdam, June 24, 1882.

“ One day after date, for value received, we, as commissioners of Racket river reservoir, promise to pay to George Parker, or bearer, eight hundred and forty-six dollars and thirty-two cents, with interest.

Commissioners of Racket river reservoir.

(HENRY WATKINS. GEORGE W. SISSON. GEO. B. SWAN.

Swan, one of the makers, having died, the survivors were made defendants. By chapter 90 of the Laws of 1869, a board of commissioners were appointed for the purpose of improving the navigation of the Racket river and the hydraulic power thereof, to be termed “ Commissioners for improvements on the Racket river.” One George Parker performed'services for said commissioners .in improving the navigation of said river, and they executed the note in suit therefor. Said Parker transferred the "note to plaintiff.

The commissioners by said act were empowered to make dams,, and establish and maintain reservoirs on Racket _ river, and they were required to make an estimate of and determine the probable cost of such improvements, and the expense therefor was to be assessed and collected as provided in § 7 of the act. Section provided for the appointment of a board of assessors who shall make a schedule and description of the several lots that should be assessed as provided in the act, and that they shall assess on the property benefited the sum of $5,000 the first year, and thereafter from time to time such sums as shall be necessary. After the assessments are completed, the assessors shall certify the same, furnishing a detailed statement thereof to such commissioners. The act gives the latter the right of action to collect such assessments.

The court below found that seven assessments were made by the assessors under said act from and including 1872 up to and including 1879, amounting in all to $42,000, and that some part of such assessments remain uncollected. That the commissioners had failed to take legal measures to effect such collection and had not ordered any new assessment since the giving of said note. That the assessors had been ready and willing at all times to make any necessary assessment when required to do so by the commissioners.

Defendants having signed their proper names to the note in suit are prima facie liable personally. Brockway v. Allen, 17 Wend., 40.

This is especially so in this case, because it is provided in chapter 90 of the Laws of 1869, that the commissioners appointed thereunder shall be termed “ Commissioners for Improvements on the Racket River,” while in the note in suit defendants are designated as “ Commissioners of Racket River Reservoir.” They do not appear, therefore, to have executed the note as commissioners under the act in question.

I am not prepared to hold, however, it being shown by defendants that Parker was in fact employed by them as commissioners under the act in question in the performance of labor authorized by such act, and that the note was intended to be given by defendants therefor as such commissioners, but by mistake there was a misnomer of their title, that the defendants could ordinarily be held personally liable. Brockway v. Allen, 17 Wend., 40 ; Bank of Genesee v. Bank of Patchin, 19 N. Y., 315.

The evidence in the case does show that Parker was employed by defendants as commissioners under the act in question to perform labor authorized thereby, and hence it is doubtful if the defendants could be held personally liable unless they were guilty of negligence or misconduct, as found by the trial judge, in omitting to call upon the assessors under the act to make an assessment to pay the note in suit and in, failing to collect the assessment already made.

The law is well settled that public officers charged with a ministerial duty are answerable in damages to anyone specially injured by their neglect or omission to perform the duties of their offices. Piercy v. Averill, 37 Hun, 366, and cases cited ; Bennett v. Whitney, 94 N. Y., 306.

I will assume that in the first instance defendants were not personally liable on the note and only liable as commissioners. If .they had any duty to perform in the way of calling on the assessors to make ari assessment ,or to collect assessments made and failed to perform such duty, such failure was a direct injury to plaintiff or his assignor. He had no means of collecting his claim except by an assessment under the act,. The defendants failing to cause such an assessment to be made prevented the payment of his claim. Therefore, under the authorities cited, defendants, if bound to cause an assessment to be made or to collect those already made, are for the omission to do so liable personally.

Defendants insist that said chapter 90 of the Laws of 1869 created a corporation, and the negligence,' if any,' shown in the case, was therefore a corporate negligence and not that of defendants personally, and hence the defendants are not personally liable. Bassett v. Fish, 75 N. Y., 303.

I am unable to perceive that the act in question created a corporation properly so called, although it is possible that its. effect was to make the commissioners a quasi corporation, the same as supervisors, trustees of school districts, etc. See 2 Kent, 27_ 8_

_ _ The corporation referred to in the case of Bassett v. Fish, cited by defendants, was formed under chap. 555, of the Laws of 1864, and was a corporation properly so called, and the distinction between such a corporation and a quasi corporation is clearly stated in that fíase. But if chap. 90, Laws of 1869, did create a quasi ■corporation, the commissioners under the act in question are public officers and liable for omission to perform their duties under the act within' Piercy v. Averill, supra, and kindred cases.

It is claimed by defendants that under chap. 90, supra, they as commissioners had no right or power and it was not their duty to cause an assessment to be made by the assessors. It is true the act does not in terms give them power to cause the making of an assessment, but it confers on them power to establish and maintain dams and reservoirs. It provides that they shall make an estimate of the probable cost of making said improvements and the board of assessors shall make an assessment therefor before the work is done. The board of commissioners therefore under the act are authorized to construct, establish and maintain dams and reservoirs. I think that on making the estimate of the amount required to be assessed in any year to do the required work they had the power to lay such estimate before the board of assessors and to require the latter to make an assessment. In no other way could the assessors know the amount necessary. In no other way can the law be carried out. It is a well settled principle that statutes containing grants of power must be construed so as to include the authority to do all things necessary to make the object of the grant effectual and to enable the donee of the power to-accomplish the express purpose of the act. Mayor, etc., of New York v. Bands, 105 N. Y., 211; 7 St. Rep., 337 ; People ex rel. Ostrander et al., v. Chapin, 105 N.Y., 309; 7 St. Rep., 209.

. Here the commissioners were authorized to erect and maintain dams and reservoirs. Before doing so they must estimate the expense and the assessors must assess the amount. Can it be doubted that the commissioners had the power to lay before the assessors their said estimate and call upon them to make an assessment? Such a right is necessary to make effectual the power conferred upon them to make and maintain reservoirs, and hence is inferred.

Having the power it will not be doubted it was the duty of the commissioners to ask for an assessment in order that they might carry out the work devolved upon them.

The court below was, therefore, justified in his conclusion that defendants failing to require an assessment to pay the claim in suit were personally liable. I have examined § 3, chapter 432 of the Laws of 1872, to which our attention is called by counsel for defendants, and find some difficulty in construing it. I do not think, however, it was intended by said section to repeal § 7 of the original act. I am inclined to think it was intended by § 3, supra, to give power to the assessors to make different and separate assessments when called upon to raise any sum under the act.

' The court below also finds that defendants had failed to collect assessments made. I think the omission of defendants to so collect the same was a negligent act injurious to plaintiff and rendering them personally liable.

Counsel for defendants claim that it is not shown that any assessment was made to pay Parker’s claim, and hence it does not appear that he had any interest in any assessment made. Under the act the commissioners had the right to receive and collect all assessments. They are not restricted as to the use of assessments collected. In other words, money received by them under any assessment may be applied to the payment of any just claim. The assessments already made if collected could, under the act, be legally applied upon the note in suit. Hence the above position is not well taken.

Defendants also claim that the act in question was unconstitutional and hence defendants were under no obligation to enforce its provisions. I do not deem it necessary to discuss the constitutionality of the law. If in fact unconstitutional, undoubtedly defendants were not compelled to act under it. Bnt they acted under the law and employed plaintiff’s assignor, and having done so can they avoid paying him the value of the services evidenced by the note in suit on the ground that the statute in question is not constitutional ?

It is held that an unconstitutional act is not law; it confers no rights, imposes no duties, affords no protection, it is as inoperative as if never passed. Norton v. Shelby County, 118 U. S., 426.

As we have seen, defendants employed Parker and gave him the note in suit for the value of his services. That prima facie they are personally liable although they signed the note as “ commissioners of Backet river reservoir.” But defendants contest the claim on the ground that they in fact executed the note for work done for them as “commissionersfor improvements on the Backet river,” under a law passed by the legislature of the state of Hew York If the "law is unconstitutional, as claimed, there was in fact no law. Defendants were not commissioners. They have no-defense to the action. Having employed Parker and received the benefit of his labor, they must pay him.

The other questions raised in the case I do not think it necessary to discuss.

The judgment should be affirmed,, with costs.

Mayham, J., concurs.

Herrick, J.

The defendants gave the note as public officers ; it could only be paid by moneys raised by assessment; other officers, over whom they had no control, were to make such assessments. I am in doubt under the case of Tone v. Mayor, 70 N. Y., 157, whether it was their duty to compel such assessors to act,, and whether a failure to compel them to act makes them guilty of negligence and, hence, personally liable upon the note.


author: Putnam, J.

text:
    Homedas Riendeau, Resp’t, v. Roselle Bullock et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Contract—Executory.
    Plaintiff contracted to sell certain ice to defendants, the latter agreeing to take the same during the August following, and to pay $3.25 per ton. The ice was to be delivered to defendants on their canal boats and weighed. The contract also contained a covenant that all ice put on defendants’ boats should be good, sound, clear, merchantable ice. Held, that although the words “hereby sell” were used in the writing between the parties, the title to the ice remained in the plaintiff until delivery to defendants.
    2. Same—Rescission.
    In such case defendants failed to take the ice away in August as provided in the" contract, and telegraphed plaintiff asking “ whether you intend to load any more boats at August prices,” to which plaintiff answered that he would load only for 25 cents per ton extra, and defendants answered: “ Cannot pay the advance.” Plaintiff then telegraphed: “Will-load balance at August prices if taken by September 20th. Held, that by plaintiff's refusal to deliver the balance of ice at August price, the contract was rescinded, and defendants having acted upon such refusal, were not. bound to take such balance, notwithstanding the subsequent offer of plaintiff to deliver at August prices.
    3. Same—Construction.
    Such contract required that plaintiff load defendants’ boats within 24 hours after arrival, and forfeit $10 per day on each boat, if he defaulted. Plaintiff took 48 hours to load some of the boats, and the referee held that he had not defaulted, the 24 hours meaning 24 hours of daylight. Held, error; that defendants were entitled to an allowance for such, failure.
    Appeal from a judgment for plaintiff, entered upon the report of a referee.
    Action to recover damages for the breach of a contract for the sale and delivery of a quantity of-ice.
    The contract was as follows, viz.:
    “Memorandum of agreement made this 31st day of May, 1890, between H. R. Riendeau, of Ohambly, P. Q., and Messrs. Bullock, Shaw, Holbrook and Averill, said Riendeau hereby sells and agrees to deliver to said Bullock, Shaw, Holbrook and Averill all the ice in his storehouses 104 ft x 40 and 112 ft. x 36, situate on. land owned by one Char tier on the northeast side of the Chambly canal, about five miles south Chambly, P. Q., such delivery to be f. o. b. canal boats at such storehouses at $2.75 per ton for all delivered to such boats in month of June, 1890, and three dollars per ton for all delivered to such boats in month of July, 1890,. the weight of the ice to be determined by the weigh lock weight, at Waterford, said Riendeau to load all boats within_ twenty-four hours of arrival at said storehouse, and in case of failure to load in such time to pay to said Bullock, Shaw, Holbrook and Averill ten dollars per day on each boat after they have laid twenty-four hours, such ice to be paid for by said Bullock, Shaw, Holbrook and Averill as such cargo is weighed at Waterford, and said Riendeau hereby agrees that all ice put on such boats shall be good, sound, clear, merchantable ice. And also agrees to insure _ such ice to the amount of fourteen hundred dollars, and make insurance payable in case of loss to said Bullock, Shaw, Holbrook and Averill.’’

      W. H. Dunn and R. Corbin, for app’lts; E. F. Botsford (George H. Beckwith, of counsel), for resp’t.
   Putnam, J.

By the agreement between the parties as extended plaintiff contracted to sell the ice contained in his two ice houses to defendant, the latter agreeing to take the same during ■the month of August, 1890, and to pay therefor $3.25 per too.

Although the words “ hereby sell ” are used in the writing between the parties, the agreement I think did not pass the title to the ice, but constituted an executory contract of sale.

Before the title could pass, the ice had to be delivered to defendants on their canal boats and weighed. The contract also contained a covenant that all ice put on defendants’ boats should be good, sound, clear, merchantable ice. Hence that character of ice had to be separated from the poorer quality contained in the ice houses. Therefore the title to the ice remained in the plaintiff" until delivered to defendants. Joyce v. Adams, 8 N. Y., 291;. Ward v. Shaw, 7 Wend., 404; Terry v. Wheeler, 25 N. Y., 525; Uhlman v. Day, 38 Hun, 300; Anderson v. Read, 106 N. Y., 333 ; 11 St. Rep., 123; Stephens v. Santee, 49 N. Y., 35.

Whether a transaction amounts to an executed sale, or an executory agreement to sell, often depends upon the intent of the parties appearing from the circumstances of the case. Here the fact that on account of the delay of defendants in taking the ice in’Yuly the price was raised twenty-five cents per ton, and that plaintiff on account of the failure of defendants to remove the ice in August, assumed to raise the price an additional twenty-five cents-per ton, shows the understanding of the parties that the title' remained in the plaintiff.

The defendants failed to take the ice away in the month of August, as provided in the contract as extended. On August 27, 1890, the plaintiff wrote defendants as follows : ‘"The ice was to be all taken before 1 Sept. I have had a great loss in-keeping it-over to tr_y and meet you, so my intendence is if you take it all by the beginning of Sept., say in the first ten days, to make only 25 cents extra on whatever be taken after this month and up to ¿he 10th Sept Please let me know if you accept this offer.”

The defendants on the same day answered : “ As to paying a .further advance, would say the market will not stand it; we cannot get our money back as it is, and rather than pay an advance would prefer after you load the boats we put in this month, that you sell it elsewhere.” On September 4, defendants telegraphed to plaintiff, as follows: “Please wire at once how many tons you will have, and whether you intend to load any more boats than those there now, at August prices.” On September 7, plaintiff answered as follows: “ Will call these four at August figure, and balance twenty-five cents extra, providing you keep going on sending boats.” On September 8, defendants answered as follows:

All rigfu; you need not lo^d any more boats for us, as we cannot pay the advance. Will take the four boats loaded, and now on the way, at August price.” To which the plaintiff on the same day, replied: “ To meet you friendly, will load balance of ■ice at August price, provided you take it by the twenty instant.”

The referee found “ that the act of plaintiff in telegraphing defendants that they could have the balance of the ice after the four •boat loads by paying twenty-five cents additional per ton, providing they took it by the 20th of September, amounted to the expression of an intention to refuse to deliver said balance at the August prices, and under August contract.”

The above conclusion of the referee is sustained by the evidence in the case.

I am unable to see what right plaintiff had to raise the price of ice taken in pursuance of the contract, if he desired to hold defendants thereunder. His proper course was to offer to carry out the contract, and to demand the performance thereof by defendants. He was bound to do this before he could treat the contract as rescinded. Monroe v. Reynolds, 47 Barb., 574; Fancher v. Goodman, 29 id., 315.

When plaintiff received the telegram of September 4, he should have answered, showing his willingness to deliver the ice. He ■could, in his answer, have claimed that he expected to receive such damages as he might sustain on account of the delay of defendants in taking away the ice. And he could have recovered such damages. Dayton v. Rowland, 1 Daly, 446; Dibblee v. Corbett, 9 Abb., 200; Ruff v. Rinaldo, 55 N. Y., 664.

But instead of taking this course the answer of plaintiff to defendant’s telegram was, as found by the referee, a refusal to carry ■out the contract. It amounted to a rescission. He proposed to substitute a new contract for the ice. The defendants could legally act upon his refusal to perform the contract and refuse to take the ice at $3.50 per ton. They were not compelled to enter into a. new contract. Plaintiff having refused to deliver the ice under the contract, defendants were not bound to make formal demand, or tender or offer money to the plaintiff. Anderson v. Sherwood, 56 Barb., 66.

Also, plaintiff, as the referee determines, refused to deliver the-balance of the ice under the contract, and the defendants having acted upon such refusal and sent their telegram of September 8th, were not bound to afterwards take such balance notwithstanding-the subsequent offer of the plaintiff contained in his telegram of the same day.

I conclude that on account of the declination of the plaintiff on September 7th to deliver the residue of the ice under the contract, the defendants are not liable therefor. As to that portion-delivered to and received by the defendants, they having consented to take the same after plaintiff’s telegram of the 7th, are liable to-pay therefor.

Under the contract defendants were clearly entitled to an allowance for plaintiff’s failure to load the canal boats within twenty-four hours, as provided in the contract.

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

Mayham, P. J., and Herrick, J., concur.


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    Darius A. Morse et al., App’lts, v. William McLaughlin et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Mechanic’s lien—Chap. 343, Laws 1885—Not necessary that notice be SIGNED BY CLAIMANT.
    It is not necessary that the claimant’s name be signed at the end of a notice of mechanics’ lien, filed pursuant to chap. 343, Laws of 1885; it is sufficient if such name be stated at the commencement of the notice.
    Appeal from a judgment in favor of defendants, entered upon an order dismissing plaintiffs’ complaint, made at the close of plaintiffs’ case upon trial at circuit.

      John A. Vance, for app’lts; Kellas & Munsill (John P. Kellas, of counsel), for resp’ts.
   Putnam, J.

This action is brought to foreclose a mechanic’s lien filed in pursuance of the provisions of chap. 342 of the Laws of 1885. On the trial plaintiff was non-suited on the ground, as stated in the case, that the notice of lien was not properly signed. Defendants now claim that the disposition of the case below was right, not only on the ground stated, but also for the reason that the verification to the notice of lien is defective. It is as follows:

“County of St. Lawrence, ss:

William A. Moore, being duly sworn, says he is one of the firm of D. A. & W. A. Moore and one of the persons making the foregoing claim, and that the statements therein contained are true to his knowledge or information and belief.

“ William A. Moore.

“ Subscribed and sworn to before me,) this 2d day of September, 1891, j

“A. B, Hamilton, J. P."

This point was not taken by the defendants on the trial and •therefore, I think, should not be entertained. But,- if otherwise, it has been determined that a verification following the words of the statute is sufficient. See Boyd v. Bassett, 40 St. Rep., 658; Kealey v. Murray, 15 N. Y. Sup., 403; 40 St. Rep., 28; Schwartz v. Allen, 24 St. Rep., 912.

Section 25 of the Lien Law of 1885 is as follows:

“ This act is hereby declared to be a remedial statute and is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce thé same.”'

Construing the notice of lien filed by the plaintiff as required by the above section, I think it is sufficient. It states at’the commencement that “ Darius A. Moore and William A. Moore, comprising the firm of D. A. Moore & W. A. Moore, * * * have a claim, etc." Then follows the statement of the facts and a •description of the property affected by the lien, and at the end is -the verification.

Section 4 of the lien law does not require the notice of lien to be signed or subscribed by the lienor. It requires a notice of lien in writing. The statement at the commencement of the notice in question that Darius A. Moore and William A. Moore have a -claim, etc., gives as full and perfect a notice of who the parties .are that claim the lien as if their names, instead* of being stated at the commencement of the paper, were signed at the end.

At the end of the notice is the verification above set out, subscribed and sworn to by one of the lienors and verified. This ’’ verification states that the affiant is one of the firm of D. A. & W. A. Moore and one of the persons making the foregoing claim, and therefore shows, if it did not otherwise appear, who are the persons who filed the notice. Construing this paper as required by § 25 of the lien law, I think it is sufficient. It is a notice of lien in writing as required by the act.

It follows that the judgment should be reversed and a new trial granted, with costs to abide the event.

Mayham, P. J., and Herrick, J., concur.


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    The People, Resp’ts, v. Theodore W. Myers, Comptroller of the City of New York, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Taxes—County chargeable with interest upon failure to pay state tax.
    When a county fails to pay to the state its annual tax, knowing the .amount of the tax due, and the time of its payment, it will be chargeable with interest thereon from such time.
    Appeal by defendant from a final judgment awarding a peremptory mandamus to plaintiffs after trial of issue under alternative writ of mandamus.

      Proceedings to compel the comptroller of the city of New York to pay a state tax imposed on the city and county of New York.

      William H. Clark (George S. Coleman, of counsel), for app’lt; Simon W. Rosendale, atty. gen., for resp’ts.
   Putnam, J.

The. j udgment from which this appeal is taken directed the issuing of a peremptory mandamus to the defendant commanding him to issue sufficient revenue bonds of the city and county of New York, and to negotiate the same for the purpose of raising $464,221.10 on account of the state taxes for the fisca year beginning October 1, 1889.

The following propositions asserted by plaintiffs may be assumed as established, and, I think, are not controverted by the defendant.

First. That the quota of the state tax assessed upon the city and county of New York was due and payable from that county on the first day of May, 1890.

Second. That it was the duty of the defendant at that time, May 1, 1890, to pay the quota of the state tax due from the city and county of New York into the state treasury.

Third. That the failure upon the part of the comptroller, the defendant, to pay the state tax at the time stated, was a neglect of statutory duty imposed upon him; and

Fourth. That mandamus was the proper remedy to enforce the performance of that duty.”

It is also conceded that the defendant, under the provisions of § 153 of the New York city consolidation act, was authorized to issue revenue bonds for the purpose of paying the tax of $420,-300.08, which, under the statute, became due on the 1st day of May, 1890.

Counsel for appellant admitted that the statute contemplated a prompt payment of such taxes, but claims that it makes no provision for interest or a penalty in the event of any. delay on the part of the city and county of New York.

The only objection urged to the final order or judgment directing the issuance of the mandamus is that it directs the payment not only of the original tax, but also of interest thereon. Appellant insists that the plaintiffs were not entitled to recover interest, and to that extent that the order appealed from is erroneous.

The general rule is well settled that where a debtor is in default for not paying money in pursuance of his contract he is chargeable with interest from the time of his default. Van Rensselaer v. Jewett, 2 Com., 135; Adams v. The Fort Plain Bank, 36 N. Y., 261.

In this case the tax in question was due from the city and county of New York to the state by the terms of the statute on the 1st of May, 1890. The payment of said tax by the defendant was made a statutory duty. The amount of the tax was by the law not only due from him- to the state at the time mentioned, but the statute conferred upon him ample power to raise the necessary money. His position may be deemed, then, similar to that of a debtor from whom money becomes due by the terms of a contract. It should make no difference as to interest whether the payment, is due under a contract or by the terms of a law. The amount and time of payment were certain; the money was due to plaintiffs and a duty devolved upon the defendant to pay it. I am unable to see why interest should not be paid on a debt due by the terms of a statute from the county of New York to the state the same as if the money was due by the terms of a contract.

We are only referred to one authority where the question involved in this case has been directly passed upon. The People v. The County of New York, 5 Cow., 531.

In that case, decided by the supreme court of the state in 1816, it was determined that interest runs on arrears of taxes owing by a county to the.state. It is not suggested that that case has-ever been criticized or doubted. The court there held that when the debtor, in that case, as here, made a debtor by statute, knows precisely what he has to pay and when he has to pay, he shall be charged with interest if he neglects to pay. In the opinion the following language occurs, viz.: “ Defendants knew perfectly well the amount of the taxes due from the county to the state; and they also knew they were bound to make payment by a certain day in each year. They were then clearly bound to pay interest, unless they were protected by some exception from the general rule.”

I .think the case cited was properly decided and determines the question under consideration in favor of the contention of the respondents.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not sitting.


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    The People ex rel. The Troy & Lansingburgh Railroad Company v. James W. Coffey et al., Assessors.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Municipal coepobations—Assessment—Railroads.
    The charter of Trdy provides that whenever the common council shall order any street paved, one half of the expense shall he assessed upon the taxable property of the city and the other half assessed upon the property benefited. A resolution was passed by the common council directing the abutting owners to pave River street within ten days thereafter, and in default said work to be done by the city and api ortioned and assessed pursuant to law. The work was done_ by the city, and the assessors charged about one-third of the expense against the city at large, a like amount against the abutting owners and the balance against the relator, whose street car tracks ran through the street, such balance being the actual cost of paving between its rails and eighteen inches outside thereof. The assessors claim to have charged this amount against relator, not under the charter, but under an agreement contained in an ordinance granting a license to relator to lay its. tracks, which was accepted by it in writing. Meld, that, as appears by the resolution ordering the work, the city intended to assess the expense therefor according to its charter, and the idea of holding the relator under its agreement was an afterthought, and the relator having no notice to do the work under such agreement, or opportunity so to do, the assessment was unauthorized.
    (Herbick, J., dissents.)

      Certiorari to review an assessment- made by the local assessors of the city of Troy against the property of the Troy & Lansingburgh Eailroad Company for a portion of the expense of paving a certain street in said city.

      Smith & Parmenter (R. A. Parmenter, of counsel), for relator; William J. Roche, for def’ts.
   Putnam, J.

This certiorari is brought to review an assessment made by the board of local assessors of the city of Troy against relator’s property, amounting to $25,764.74, for paving a portion of Eiver street in said city in which relator’s tracks are placed. The facts, as stated in the case, as far as necessary to detail them,. are as follows:

“ Under the city charter, as amended by chapter 317 of the Laws of 1889, which last act went into effect on the 29th day of May, 1889, it is provided that ‘ whenever the said common council shall order any street, avenue or highway, which is forty feet or upwards in width, to be paved or macadamized and new curbstone to be set in connection with said pavement, one-half of the entire expense of such pavement or macadamizing and curbstone, including the pavement or macadamizing and cross-walks at the intersection of streets, avenues, highways, squares and alleys, shall be charged upon the real and personal property liable to taxation in the city of Troy, and shall be paid by the city at large, and the other half if such expense shall be assessed and be a lien upon the property benefited or to be benefited thereby as provided by this act ’

“ On the 9th day of September, 1889, the said common council passed, and in due time the mayor of said city of Troy approved, a resolution in these words, to wit: Eesolved. That the owners of property on Eiver street, from Hoosick street to the north boundary line of the city, be and are hereby ordered to cause said street to be paved with granite block pavement, and set twenty inch curbstone along the gutter line. Said work to be performed within ten days, and in default thereof the contracting board is hereby directed to cause the said work to be done, and the expense thereof shall be apportioned and assessed by the local assessors upon the property benefited pursuant to law.’

“ That the local improvement ordered by said resolution comprised the paving of said Eiver street with 'granite block pavement with a twenty inch curbstone along the gutter line of said street from Hoosick street to the north boundary line of the city of Troy, through and over the entire length of eleven city blocks, a distance of about four thousand six hundred and fifty-four feet, and said roadway of said street so ordered to be paved is about thirty-six feet in width, and the track of the Troy & Lansing-burgh railroad runs through the entire length and still further north and south, and the width of Eiver street is about sixty feet.”

It is conceded that the work directed by the foregoing resolution could not have been done in ten days. The authorities of the city afterwards performed the work directed to be done by said resolution, not however for the entire distance of River street, at an expense of $78,295.47.

The board of local assessors charged the said expense as follows r $25,764.74 against relator, $26,764.74 against the city at large and a like sum against the several owners of land abutting on River-street along the line of said improvement.

It appears by the return of the defendants that there are 7,487.53 square yards of paving between the tracks of said company in River street and for and including a distance of eighteen inches outside of each rail, which at the contractor’s price for said pavement, $3.40 per yard, and including a proper proportion incurred for incidental expenses, amounts to the sum above mentioned charged against relator. It thus appears that the board of local-assessors assessed against relator the actual cost of paving between its rails and eighteen inches outside thereof. The defendants in the return state that the relator is in fact benefited to the full amount charged against it by the new pavement.

It is evident that if chapter 317 of the Laws of 1889, which was in force when the ordinance of the common council of the city of Troy above referred to was passed, is applicable to the assessment complained of by relator, the action of the board of assessors was unauthorized. Under the statute, the board should have divided the expense of the pavement, $78,294.04, in two parts, one of which should have been charged to the city at large, and the other assessed against relator’s and the other property benefited.

But defendants in charging against relator the sum of $25,-764.73, on account of said pavement, did not, as appears by their return, attempt to do so under chapter 317 of the Laws of 1889, {supra), but claimed that such act did not apply to the assessment in question, because of the clause therein that “ nothing herein contained shall be held to repeal, modify or affect the condition or obligations of any existing contract or license between the city of Troy and any person or corporation. ” That on January 29,1867,. defendants passed an ordinance granting a license to relator to lay its tracks on the street in question, and other streets. That § 4 of said ordinance is as follows:

“ Section 4. That in laying down the rails they shall put trap rock or Belgian blocks on the inside and the outside of the rail, and also lay a line of granite or trap rock blocks on the outside of each rail, which shall be six inches deep, and alternating blocks eight inches square with six by eight inches, with sufficient cobblestone pavement to keep the blocks in place, and pave the space between the rails, and eighteen inches outside thereof, with Belgian pavement, and shall hereafter conform to such style of paving and stone used as the common council may order; and in case said company refuse, omit or neglect to do any act required to be done by this ordinance, then the same may be done by and under the direction of the common council, or the proper officers of the city, and the expense thereof shall be a lien upon said road; and the company, in accepting the license given under this ordinance, agree to pay such expense, and that such expense shall be a claim against said company, to be collected in an action to be brought by the mayor, recorder, aldermen and commonalty of the city of-Troy against said company.”

Said ordinance also provided that it was passed on condition, that the relator accept the same in writing, and it is not denied that said acceptance was afterwards duly made. Defendant insists, that this license, which was accepted by relator, created a valid contract on its part or liability to pave between its rails and eighteen inches outside thereof with such pavement as should be directed by the common council of the city, and on its failure to obey the order of the common' council the latter might lawfully do the work and charge the expense to relator as provided in the ordinance, and that under § 10 of the act of 1889, above quoted, this contract theretofore made between the city and relator, and the liability of the latter to obey the direction of the city in regard to pavement, was not affected.

I assume in this discussion that this position of defendants is correct, and without any careful examination of the matter am inclined to agree with the view of the counsel for defendants in that regard.

It being assumed, therefore, that the contract or liability of the relator made by the license above mentioned and its acceptance remains in full force, notwithstanding the act of 1889, can the assessment complained of be sustained ?

Although the city might enforce the contract or liability created by the license of January 29, 1867, and the acceptance thereof, it could also proceed and do the work in question and. assess therefor under the act of 1889. If the city intended to. pave the street its whole width pursuant to the provision of the latter act, its proper course was to pass such a resolution as it did, order the work to be done, stating that if not performed such paving and curbing would be done by the city and the expense apportioned and assessed on the property benefited.

If the city desired and intended to hold the relator to do th,e paving between its rails and for eighteen inches outside thereof,, under the aforesaid contract or license, it was bound to so inform the company. In some way to notify it that the city, under the license, required it to pave with granite'such portion of the street as it was bound thereunder to pave: It will be seen, under § 4? {supra), that if pavement other than “ Belgian ” is required to be used, an order of the common council is necessary. The city was also required to give relator a reasonable time within which to perform the work. It is conceded that it was impossible to do so within ten days or within a much longer time.

It is evident that when the common council passed the resolution referred to, it was not with the view of holding the company to the liability imposed upon it by the license. It was intended to. charge the whole expense as provided by the act of 1889 upon the city and property benefited. But the city, being about to place in the street in question a new granite pavement, was compelled, if it desired to hold the company to its obligation to pave, under § 4 of the ordinance of 1867, to pass a proper ordinance, to give notice of what it required, to demand performance, and to allow a reasonable time to do the work.

I am unable to see that defendants have ever given any such notice. The resolution of the. common council referred to was in fact a notice that no claim was made under the license, It was not directed to relator, but to owners of property on the street, and states that the expense of the improvement would be charged on the property benefited. Under the license relator is not charged with the improvement on the ground of benefit to its property, but on the ground of the liability incurred by the acceptance of the license; a liability incurred in consideration of the right of running its cars in the streets of the city. The com-, pony would be liable if the new pavement, instead of being a* benefit to it, was in fact an injury. It, therefore, never had any notice that the city intended to hold it to the liability under the license, or that it was required to do the paving, or any opportunity to do such work. 1, therefore, am of the opinion that no liability on the part of the relator to pay for the expense of the aforesaid paving existed except such liability to an assessment for its pro rata part of one half of the cost of the work as may exist under the act of 1889.

I also think that under § 4 of the ordinance of 1867 the defendants were not authorized to make the assessment in question. The remedy of the city as provided by the ordinance, if it was in fact authorized to do the work in question at the expense of the company, is by action. The assessment in question for such work, if not reviewed after four months, might be deemed made under the act of 1889, and by lapse of time conclude the company.

Defendants suggest that it appears by the return that relator made no objection to the work as it was progressing, but assisted and aided therein, taking an active and affirmative part in connection with such work. That having laid by until the paving was done, relator should now be estopped from objecting to the assessment therefor. The answer to this proposition is that relator1 had no notice, direct or indirect, that the city was paving between the rails and for eighteen inches outside under the provisions of § 4 of the ordinance of 1867. By the resolution of September 19, 1889, under which the pavitfg was done, the company had the right to believe that the city did not intend to enforce its liability under § 4, supra. Such resolution was notice to the company that the city did not so elect Under it the expense of all the work was to be apportioned and assessed upon the property benefited pursuant to law, that is under the act of 1889, one-half on the property benefited and one-half on the city at large. Therefore, the company is in no way estopped, no. demand being made and no notice, express or implied, given that the city was doing the work under the license of 1867. It might be argued with considerable force that the city, by and under the language of the resolution of September 19, supra, is estopped from making any claim against relator as licensee for the work done thereunder.

As above suggested, it is evident that when the city passed the resolution in question the liability of relator under the ordinance of 1867 was not thought of. It was then intended to assess the-expense of the work provided by the resolution under the act of 1889, and the idea of holding the company under the provisions, of § 4 of the sáid ordinance was an afterthought.

I think, therefore, that assuming that the city could have compelled relator to do the paving in question by giving proper notice,, making a proper demand and affording the company a reasonable-time to do the work, yet, having failed to give the notice or make; the demand or afford any reasonable time to do the paving, the assessment in question is unauthorized.

There are other questions raised in the case which it is unnecessary to discuss.

I think the assessment in question should be reversed and set aside, with fifty dollars costs and disbursements.

Mayham, P. J., concurs; Herrick, J., dissenting.


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    Ann Arthur, Adm’rx, App’lt, v. The Village of Glens Falls, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Villages—General incorporation act—Presentation and piling notice op CLAIM.
    Section 9, title 3, of the general village act provides that no action shall be maintained against a village for damages for personal injuries or injury to property, unless the claim shall have been presented and notice of the time and place of the injury filed with the village clerk, or duly presented to the board of trustees, within one year after the cause of action accrued. Held, that if such an action be brought within a year from the injury the complaint must allege presentation and notice, and if brought more than a year thereafter it must further allege that presentar tian and notice was within a year.
    Appeal from a judgment and decision of the Warren county circuit, dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Howard & Potter (D. S. Potter, of counsel), for app’lt; King & Ashley (H. P. King, of counsel), for resp’t.
   Putnam, J.

The action is brought by plaintiff as administratrix of her deceased husband to recover damages for his death, which the complaint alleged was caused by a negligent act on the part of the respondent.

The village of Glens Falls is organized under the general village act.

Section 9, title 3, of said act was amended by chapter 440, Laws of 1889. The title of the amended act, and the section as amended is as follows: “An act to amend § 9 of title 3 of chapter 291 of the Laws of 1870, entitled ‘An act for the incorporation of villages.’

“ Ho action shall be maintained against the village for damages for personal injuries or injury' to property alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employee thereof, unless the same shall be commenced within two years after the cause of action therefor shall have accrued, nor unless the claim shall have been presented and notice of the time and place at which such injuries were received shall have been filed with the village clerk or duly presented to the board of trustees within one year after such cause of action shall have accrued.”

There was no allegation in the complaint that the claim had been presented to the board of trustees or filed with the village clerk, or that the notice required by the act had been served. On the trial defendant’s counsel moved to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court granted the motion, plaintiff’s counsel excepting. Counsel for plaintiff stated that they could prove upon the service of a summons and complaint within a year the accruing of the cause of action the board of trustees of the village was convened, the complaint read to them and considered, and by them referred to the village attorney, who was authorized to defend and who has put in a defense, which facts are now offered to be proved.

Defendant objected to the offer, and the court refused to permit the plaintiff to make the proof, plaintiff excepting.

The question is presented whether, under the act of 1889, if the action is commenced within a year from the time of the injury, it is necessary to present the claim therefor and serve notice of the time and place of the accident before the action is commenced, and to allege such presentation and notice in the complaint.

I think the view of the statute taken by the trial judge was correct. The language of the act requires the construction he placed upon it. That “ no action shall be commenced * * * unless the claim shall have been presented,” etc., means that the presentation, etc., must precede the action. Section 9, supra, seems so to read. It should be construed to mean that if an action is brought within a year from the injury the complaint must allege presentation and notice. If commenced more than a year after- the accruing of the cause of action, a presentation and notice within' a year must be stated in the pleading. This construction of the act is the only reasonable one.

Actions against municipal corporations are generally brought for some negligent act of subordinate officers or servants of the municipality committed without the knowledge of the governing authorities. The object of the act is presumably to require the presentation of a claim and a notice of the time and place of the the injury complained of within a reasonable time after its occurrence and before the commencement of an action, so that the corporate authorities can examine into the circumstances and adjust the claim, if desired, and thus prevent the making of unnecessary costs. The construction placed upon the act by the appellant would render that part relating to the presentation of claims and notice of the time and place of the injury to a great extent meaningless.

These views are sustained in Bauer v. The City of Buffalo, 44 St. Rep., 814, and Mertz v. The City of Brooklyn, 33 St. Rep., 577. The last case was affirmed by the court of appeals, 128 N. Y., 617 ; 38 St. Rep., 1014. These cases construe chapter 572 of the Laws of 1886, which requires notice of intention to commence an action, and of the time and place of the injury, to be filed within six months from the time of the accruing of the cause of action. In each of the cases cited the action was commenced within six months, and it was decided that it was necessary to file the notice required by the act prior to the commencement of the action and to allege such filing in the complaint.

Although the notice required by the act of 1889, supra, differs somewhat from that prescribed by the act of 1886, the language of both acts as to the filing of the notice are substantially alike. Both require a notice of the time and place at which the injury complained of was received to be filed in substantially the same language. I conclude, therefore, that the cases cited sustain the holding, of the trial judge and lead to the conclusion that under § 9 of chapter 440 of the Laws of 1889, the presentation of the claim and the filing- of the notice of the time and place at which the injuries were received must precede the commencement of the action, although the action is commenced within a year from the date of such injuries.

The appellant insists that chapter 440, supra, is a “local bill,” and hence violative of the constitutional provision that “ no private or local bill which may be passed by the legislature shall embrace more than one subject and that shall be expressed in the title.”

The answer to this position is that the act in question is not a local or private bill. It applies to the whole state. The cases cited by counsel for appellant show quite clearly the distinction between a local or private bill and a general act, and do not sustain his contention. People v. The Supervisors of Chautauqua County, 43 N. Y., 10; Ferguson v. Ross, 126 N. Y., 459-464 ; 37 St. Rep., 836.

In the latter case, in the opinion, the following language is used : “Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the state, or all things of a certain class,, is a general and not a local act.”

So a bill that embraces all the villages of the state which elect to take advantage of its provisions is a general and not a local act.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


author: Maynard, J.

text:
    In the Matter of the Petition of Paul Gantert.

      (Court of Appeals,

      Filed November 29, 1892.)

    Decedents’ estates—Sale of real estate—Code Orv. Pro., §§ 2740— 2801.
    Testator after directing the payment of all his just debts and funeral expenses gave his entire estate to his executors and trustees upon certain trusts for the benei.t of his wife and minor children, “ giving and granting unto my said executors and trustees full power and authority to sell and convey any and all my real estate either at private sale or public auction, and to make, execute and deliver good and sufficient conveyances therefor.” His personal estate did not exceed $1,025 and he owed unsecured debts of $30,000. His real estate was worth $75,500. Held, that testator’s real property was by the terms of the will subject to a valid power of sale for the payment of debts and funeral expenses, and therefore a creditor who had been unsuccessful in his efforts to secure the payment of his debt out of the personal estate because of the deficiency of assets was not entitled under §§ 2740-2801, to bring proceedings to obtain a sale of the réal estate to pay his demand, but as a beneficiary of the power could compel its execution.
    Appeal from judgment of the supreme court, general term, first department, affirming an order of the surrogate sustaining exceptions to report of referee and dismissing petition.

      Abner C. Thomas, for app’lt; Thomas Allison, for resp’ts.

       Affirming 43 St. Rep., 802.

   Maynard, J.

The testator made his will November 28, 1887, and died July 1, 1888. He owed unsecured debts to the amount of $80,000 and the net value of hid personal property, after the payment of the expenses of administration, did not exceed $1,025. It is to be inferred that this was the condition of his property at the time of the execution of the will, as it does not appear that any change bad occurred intermediate that date and his death. He owned real estate of the estimated value of $75,500 exclusive of the incumbrances upon it. He appointed his wife, one of his sons, and a friend, the executors and trustees of his twill, and be first orders and directs them to pay all his just debts 'and funeral expenses as soon after his decease as may be convenient. He then gives all his property, both real and personal, to his executors and trustees upon certain specified trusts for the benefit of his wife and three minor children, and in the conclude ing paragraph of the instrument appoints the executors and trustees and couples the appointment with a power in these words; “Giving and granting unto my said executors and trustee* full power and authority to sell and convey any and all mj real estate either at private sale or public auction, and tty make, execute and deliver good and sufficient conveyances therefor.” The paragraph closes with a specific authority to mortgage, the real estate for certain purposes, which it is not important to consider here. The petitioner is a general creditor to the amount of $3,750, who has been unsuccessful in his efforts to secure the payment of his debt out of the personal estate, because of the deficiency of assets, and has brought this proceeding under the provisions of the Code, §§ 2740-2801, to obtain a liquidation of his demand by the sale of the real estate of the decedent It is conceded that he is entitled to the relief sought., unless the testator’s real property is, by the terms of his will, subject to a valid power of sale for the payment of debts and funeral expenses. Sec. 2759, sub. 4. It is true, as the learned counsel for the petitioner contends, that a power of sale to pay debts, sufficient to defeat the creditor’s application' under the statute, must be one the exercise of which is imperative and not simply diycretionaiy. The creditor cannot be deprived of his statutory remedy, unless the debtor has by his testamentary act provided him with, another, which is equally prompt and effective in its operation.

But we think the authority conferred by the will is adequate to secure to the petitioner the accomplishment of the ultimate design of this proceeding. When read in connection with its other provisions, we cannot regard the direction to the. executors and trustees to pay all just debts as an idle and meaningless formula. The testator well knew that his will in this respect could not be obeyed without a sale of some part of his real estate, and it is to be presumed that he intended to clothe them with a power commensurate with the duties and obligations imposed upon them. He evidently had in view a' complete adjustment of the affairs of his estate by the agents of his choice in whom he reposed especial confidence.

Wherever a power or authority to sell is given without limitation, and is not in terms made discretionary, and its exercise is rendered necessary by the scope of the will and its declared purposes, the authority is to be deemed imperative, and a direction to sell will be implied, provided the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt, and his intention cannot otherwise be carried out. Scholle v. Scholle, 113 N. Y., 261; 23 St. Rep., 171; Chamberlain v. Taylor, 105 N. Y., 194; 7 St. Rep., 517 ; Hobson v. Hale, 95 N. Y., 598.

We are referred to many other cases, where it has been held that a power of sale is not available for the payment of debts, but they are all cases where the power was either discretionary, or limited to some other specific purpose, or where it could not be exercised without breaking up and destroying the scheme of the will and frustrating the intention of the testator. Kinnier v. Rogers, 42 N. Y., 531; Scholle v. Scholle, supra; Matter of McComb, 117 id., 378; 27 Rep., 259; Matter of Bingham, 127 N. Y., 296; 38 St. Rep., 765.

If the testator has specifically devised designated portions of his realty or impressed them with separate trusts, the presumption is very strong and usually controlling that he did not intend that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because in order to sustain the structure of the will there must be implied a direction not to sell for such a purpose. Ho difficulty of this kind is in the way here. The real and personal property is blended in one gift to the executors for a common trust in which all the beneficiaries share equally. In such cases thé exercise of a general and unlimited power of sale is imperative and may be compelled in favor of any party who is lawfully entitled, under the provisions of the will, to the proceeds of the real property when sold. A creditor whose debt is directed by the will to be paid, and for the satisfaction of which the personal estate proves insufficient, belongs to this class. He is beneficially interested in the exercise of the power, and as to him it becomes' a power in trust, and under the statute every 'such power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benéfit of the parties interested. 4 R. S., 8th Ed., 2448, § 96.

Such a power does not interfere with the order in which the assets of a decedent’s estate must be marshalled for the payment of debts. The personalty must first be exhausted, and if that fails, the execution of the power may be resorted to and compelled so far as necessary to meet the deficiency.

In a case like the present the debts are not made a charge upon the real estate. It is a naked power to sell for the payment of debts and the decisions which prescribe the rule to be observed in determining whether there is a charge upon the realty have no application. Matter of City of Rochester, 110 N. Y., 159; 17 St. Rep., 146 ; Clift v. Moses, 116 N. Y., 144; 26 St. Rep., 405; Matter of Powers, 124 N. Y., 361; 36 St. Rep., 347; Matter of Bingham, 127 N. Y., 296; 38 St. Rep., 765. If the debts were so charged there would be no occasion for the exercise of the power of sale. They would then be a lien upon the realty enforceable in equity by a sale of the property without the intervention of the authority of the executors. At common law a devise of real estate, after a direction by the testator that his debts be first paid, was deemed equivalent to a charge of the debts upon the real property devised. Trott v. Vernon, Free, in Chan., 430 ; Williams v. Chitty, 3 Vesey, 545. This liberal rule of interpretation was 'undoubtedly adopted for the reason that in England there was no statute until 1833 which rendered the real estate of all decedents liable for the payment of their simple contract debts. Butin this state there have been statutes in force for over a century (Laws 1786, chap. 27) authorizing the sale of a decedent’s real estate to pay debts and it has been uniformly held that because of the existence of this remedy an intent to charge debts upon real estate must appear from express direction or be clearly gathered from the provisions of the will. It cannot be inferred or implied. In this respect the rule is different as to legacies. Clift v. Moses, supra.

It is of some significance that the testator directs his debts to be paid by his executors and trustees, and that the power of sale is given to them in the same dual capacity. The suggestion of a trust seems to pervade the entire instrument and to characterize the duties imposed and powers created by it.

There has been some discussion by counsel, and in the opinions of the referee and surrogate, as to the validity of the trusts created for the benefit of the testator’s wife and minor children, but we are unable to perceive how a determination of that question becomes material upon this appeal. If the power of sale is limited to the purposes of the trust it is not imperative, but discretionary. There is no direction, express or implied, in the will to sell the real estate and convert it into, personalty for the purposes of the trust until the youngest child becomes of age, or until his death if he does not survive his minority. In fact the terms of the will are such that the testator seems to have contemplated that his executors and trustees might deem it expedient to hold the real estate meanwhile, or some portions of it, for he has authorized them to pay the interest on the mortgages and to execute new mortgages for the purpose of retiring those which become due and dernandable. They might sell at any time for the advantage of the trust if in their judgment it was thought advisable, but they could not be compelled to do so until the expiration of the trust term, and hence the existence of a power limited to such purposes •could not be invoked to defeat this proceeding. If the power had been effectually exercised in part the proceeds could be treated as assets available for the payment of debts and until exhausted there could be no recourse against the other lands of the decedent. Erwin v. Loper, 43 N. Y., 521; Hood v. Hood, 85 id., 561; Glacius v. Fogel, 88 id., 434; Matter of Powers, 124 id., 361; 36 St. Rep., 347. But we think that the power is not limited to the trust scheme, but was bestowed for the purpose of enabling the executors to faithfully discharge all the obligations of the will and that the petitioner as a beneficiary of the power can compel its execution.

The order appealed from must, therefore, be affirmed, with costs.

All concur.