text:
    Alanson S. Page et al., Resp’ts, v. Anton G. Methfessel, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Principal and agent—Holding out one as agent—Evidence.
    Defendant, in writing, declared himself responsible for all orders sent by “ M., agent,” to plaintiffs, if the same be countersigned by him; thereafter an order was sent plaintiffs duly countersigned, and was paid by defendant’s individual check; the next order was not countersigned by reason of defendant’s absence; thereafter defendant wrote plaintiffs to send certain goods to M., agent, and inclosed his check for the past orders not countersigned with his thanks for sending without guarantee, and saying: “ Our intention is to pay always-cash.” Thereafter none of the orders were countersigned; some were sent by defendant and some by “M., agent.” Defendant acted as bookkeeper for M., and in writing to plaintiffs always said “we." All orders were paid for by individual checks of defendant. All th?g oods ordered were used in the factory owned by defendant, and where M. made the goods up, and the proceeds were turned over to defendant and deposited in his bank account. M. was in fact agent of his wife, but plaintiffs had no knowledge thereof. In a suit against defendant to recover the value of certain orders sent “M., agent,” Held, that defendant had, by his conduct, held M. out to plaintiffs as his agent in purchasing the goods, and that the goods had been sold in reliance thereon, and had waived the requirement that the orders must be countersigned.
    2. Same—Laches.
    In such case plaintiffs were not guilty of laches in allowing several bills for orders to-accumulate, defendant-having made no suggestion‘to them' that he did not intend to pay any more or propose to change the current of the business, and several of the orders having been sent before payments on the prior account were completed.
    Appeal from a judgment entered in Oswego county on July 25, 1892, upon the report of a referee in favor of plaintiff for $4,297.24, besides costs. The notice of appeal states an intention to bring up also for review an interlocutory order of the referee, dated J une 4, 1892.
    In the complaint it is alleged that at divers times between October 7, 1890, and June 10, 1891, the plaintiffs, at the request of defendant and on his promise to pay therefor, sold and delivered to him goods at prices agreed upon and payable in sixty days, amounting to and of the value of $4,078.90. The answer denies in substance all the allegations of the complaint, except the defendant admits he has been requested to pay certain moneys to plaintiff.

      Van Hoevenberg & Holt, for app’lt; D. P. Morehouse, for resp’ts.
   Merwin, J.

All of the goods for which a recovery has been had in this case were ordered by “ Philip Michel, agent,” and were shipped by plaintiffs to “ Philip Michel, agent," at Stapleton, Staten Island, and were charged in same way upon plaintiffs’ books. The referee has found that the defendant, by his acts and conduct in these and similar prior transactions with plaintiffs, held Michel out to them as his agent in purchasing these goods, and that, in reliance upon that and in the belief induced by such acts and conduct that defendant was the principal behind Michel, they made the sales in question. In other words, it was held that the plaintiffs had the right to treat the defendant as the principal in the transactions. The question in this case is whether such Binding of the referee is -sustained by the evidence.

The plaintiffs are manufacturers at Minnetto, Oswego county, of shade cloth, window curtains and fixtures under the firm name of The Minnetto Shade Cloth Company. The defendant since April 1, 1886, has resided at Stapleton, Staten Island, and owned there a factory building for the manufacture and decorating of shade cloth into window shades. During this period Philip Michel, who is a practical window shade manufacturer, lived at Stapleton. In the latter part of April, 1886, and before the 29th, the business of manufacturing and decorating window shades at defendant’s factory was commenced under the name and style of “ Philip Michel, agent,” and such business was carried on under that name until after June 9,1891. During this-time Michel was the practical shade maker and managing agent of the business and defendant was the office man and bookkeeper, and had charge of the finances of the business. On the 29th April, 1886, Michel, as agent, had a negotiation with one Gfillett, who was a salesman and agent of the plaintiffs, in reference to the purchase of goods from the plaintiffs for the purpose of manufacturing and decorating in said factory, (xillett inquired of Michel as to his financial ■responsibility, and Michel replied, “ I have a friend. who will advance me some money to do business ; ” and thereupon Michel took Gillett to the house of defendant, introduced him to defendant, and then left. After Michel "left, Gillett asked defendant-whose agent Michel was, and defendant replied : “ He has been unfortunate and cannot use his own name. I am ready to assist. Mr. Michel according to my ability. All the orders received from Mr. Michel countersigned by myself I will be responsible for.” The defendant then, at Gillett’s request, wrote, signed and delivered to him a memorandum of which the following is a copy:

“ Stapleton, April 29, 1886.
“ I herewith declare myself to be responsible for all orders sent by Phil. Michel, agent, to the Minnetto Shade Cloth Company, if the same are countersigned by me.
“A. G. Methfessel."

After this, and on the same day and occasion, an order was signed and delivered to Gillett as follows:

“Philip Michel, agent.
1 pc. ea. 18-32-88-62-66-68-64-58.
“ Philip Michel, agent, Stapleton.
“A. G. Methfessel.”

These goods were shipped as directed, and soon thereafter the plaintiffs received in payment thereof from the defendant by mail his individual check on the German-American Bank of New York for the amount of the order, less a discount of two per cent allowed for payment within thirty days. The next order seems to have been about May 25th, and not countersigned by defendant by reason of his absence. On the 21st J une, 1886, the defendant writes to the plaintiffs, enclosing an order, as to which he says: “You will oblige me by sending at your very earliest convenience to Phil Michel, agent.” He also enclosed his check for the amount of seven bills, from May 2-5th to June 14th. In this letter he also says: “ Our intention is to pay always cash, and if we did not do it this time, it is because I was absent on a trip west, and we thought that the goods bought of you in the first days of May would last until my return. Orders however coming in earlier and larger than we expected, Mr. Michel applied to you for more goods, which you sent without my guarantee, thereby doing us a favor, for which we feel grateful. I send the full amount of those seven bills, trusting that you will allow all the discount you possibly can, and deduct the samé from the amount of next bill.” After the first order, none were in form countersigned by defendant. Some orders however were sent by the defendant himself, and many letters of defendant are in evidence from which it might be inferred that the defendant had a personal interest in the business. For instance, on the 25th September, 1886, he sends an order for certain specified goods, and adds. “ We will soon give you larger orders.”

The goods, however, were mainly ordered by “ Philip Michel, agent,” and all were shipped and charged in that form. The dealings were quite large, comprising hundreds of orders, aggregating about $35,000, and continued to June 9, 1891. All of the goods so ordered and shipped down to October 2, 1890, were paid for from time to time by the individual checks of the defendant on the German American Bank of New York, enclosed in letters written by him to the plaintiffs. The orders since October 2, 1890, are the items involved in this suit. All the goods sent by the plaintiffs were used at the factory in Stapleton, and all the proceeds of their sale after being manufactured excepting a small amount were turned over to and received by the defendant, and were deposited by him with other moneys belonging to him in his bank account with the German American Bank.

It is shown on the part of the defendant that Michel was in fact the agent of his wife, and employed the defendant as his bookkeeper and cashier, and that defendant kept an account of the moneys received, and checked them out as directed by Michel. All this, however, was unknown to plaintiffs.

Defendant was in a position to know all the orders sent, and no objection was made by him that they were not countersigned by him, or that Michel did not have authority to bind him.

These are the main features of the case. It seems to me very clear that the evidence warranted the conclusion that the limitation or condition in the writing of April 29, 1886, that the orders should be countersigned by the defendant, was waived by the defendant, or at least that the plaintiffs had a right to believe that it was not required by defendant. In his letter of June 21, 1886, he excused the want of it, and treated it as a favor that the plaintiffs sent the goods without it. And for four years and upwards thereafter he paid the bills without question, and without any suggestion that the countersigning was important. If the limitation was waived, that left the declaration of defendant general that he would be responsible for all orders sent to plaintiffs by Michel as agent. This responsibility was in effect acknowledged by the defendant, so far as the plaintiffs were concerned, from June, 1886, to October, 1890. The plaintiffs were informed of no other person as principal. The defendant himself gave orders, and indicated a personal interest in the business. The authority given by the paper of April 29, 1886, was never revoked. The plaintiffs had a right to assume that the authority continued after October,, 1890, as it had existed before. Bodine v. Killeen, 53 N. Y., 93.

It is suggested that the credit was not given to defendant because the goods were charged to Michel as agent. That form of charge indicated that credit was not given to Michel individually, and there was no other known to plaintiffs to whom credit would be given except the defendant. The plaintiffs’ agent before the commencement of the negotiation in April, 1886, was informed that Michel was insolvent and it is easy to infer that no one intended or expected that credit would be given to him. It is also suggested that the plaintiffs did not testify that they relied on defendant. In such a case it is said in Brown v. Bowen, 30 N. Y., 520, that in the absence of proof of the effect of the admission on the party setting up the estoppel, it is for the jury to say whether on the facts the several essential parts of the estoppel are proved.

In the present case it was a question of fact whether the defendant, by his acts and conduct, held out Michel to the plaintiffs as his agent, and whether from such facts and conduct the plaintiff's were led to believe, and did believe, that the defendant was the principal and relied on this in selling the goods in suit. The conclusion of the referee on this subject should not, I think, under the circumstances of this case, be disturbed.

But it is said that the plaintiffs were guilty of laches in allowing the bills in suit to accumulate. Still the defendant, by reason of his position in the business, presumptively knew all about the orders that were being sent to plaintiffs and knew that the bills in suit were not paid. He was bookkeeper and had charge of the finances, and the proceeds of all the goods sent by the plaintiffs, including these in suit, were turned over to him. He made no suggestion to the plaintiffs that he did not propose to pay any more, or proposed to change the current of the business. A large portion of the goods in suit were ordered before the payments on the prior account were completed. We fail to see any. defense on the ground of laches.

After the evidence before the referee was closed and before the decision of the case, a motion upon affidavits and notice to plaintiffs was made before the referee to correct the minutes of the referee of the testimony of the defendant as to his answer to a particular question, or that the trial be opened. Affidavits-were used by plaintiffs in opposition to the motion and there was a conflict as to what the testimony in fact was. The motion to- correct the minutes was denied, but on motion of the counsel for defendant leave was given to defendant to recall the witness upon certain terms as to the costs of the motion and the further attend- . anee before the referee and the expenses of' rebutting testimony. Nothing farther was done, the terms apparently not being satisfactory. Whether the minutes were correct was for the referee to determine, and his decision on that is conclusive. Tweed v. Davis, 1 Hun, 252. The terms for opening the case were within his discretion, and no sufficient reason appears for this-court to say ■that such discretion was abused:

Judgment and order affirmed, with costs.

Hardin, P. J., and Parker, J., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    George Merris, App'lt, v. Charles Hunt, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Wabbauty—Damages—Evidence.
    In an action brought in justice’s court to recover damages for breach of warranty in the sale of a horse, the plaintiff recovered to the extent 'of $38.75, but the county court reversed the judgment upon the ground that the evidence of plaintiff himself as to the-cost of the use of another horse to favor the one in question was improperly received on the question of damages. Ho claim was made for any special damages of this character, riorwas the 'objection'taken‘that it was not proper on the 'question of damages, The evidence showed that plaintiff had sustained damages to the amount of Ms judgment. Held, that such evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out on cross-examination, and that while not strictly proper, was not of sufficient importance to call for a reversal, in the light of the other evidence.
    Appeal from a judgment of the Onondaga county court reversing a judgment of a justice’s court in favor of the plaintiff for $38.75 damages, besides costs.

      M. H. Kiley, for app’lt; Waters, McLennan & Waters, for resp’t.
   Merwin, J.

The action in this case was to recover damages for breach of warranty in sale of a horse. The plaintiff recovered in the justice’s court to the extent of $38.75 damages, but the county court reversed the judgment upon the ground that evidence of the plaintiff himself as to the cost of the use of another horse to favor the one in question was improperly received on the question of damages. No claim, however, was made by the plaintiff for any special damages of this character, nor was the objection taken that it was not proper on the question of damages. Both parties appeared by counsel and it is quite clear that both sides understood what the correct rule of damages was. From the whole case the fair inference is that this evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out by defendant’s counsel in the cross examination of the plaintiff. It may be for this purpose it was not strictly proper, but it was not of such importance as to call for a reversal in the light of the other evidence in the case.

There was no doubt about the right of the plaintiff to recover some amount. The evidence of the defendant himself called for the recovery of damages to the extent of at least twenty-five dollars,, and, as appears by the amended return, he does not seem tobe willing to say that that amount will make the horse as good as warranted. One witness called by the defendant on the subject of damages, and apparently reliable, places the damages at forty-five dollars. The evidence on the part of plaintiff showed damages to the extent of fifty dollars. The finding of the justice that plaintiff sustained damages to the extent'of $38.75 is abundantly sustained by the evidence, and as well said by the county judge, “ seems to be eminently fair toward the defendant.”

The counsel for defendant suggests that errors sufficient to call for a reversal were made by the justice in other rulings on the subject of value. We think not

We think that substantial justice was done in the justice’s court, and that no errors were made that were sufficient to call for a reversal. Code, § 3063 ; Davison v. Luckman, 45 St. Rep., 727; Jackson v. Collins, 41 id., 590; Lockwood v. Lockwood, 38 id., 601.

Judgment of the county court reversed and that of the justice affirmed, with costs to the appellant

Hardin, P. J., concurs.


author: Andrews, Ch. J.

text:
    The Equity Gas Light Company of the Eastern District of the City of Brooklyn, Resp’t, v. Ferdinand McKeige, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    Trial—Adverse claim no defense to recovery.
    The fact that a party may possibly be subjected to a double recovery in the same matter in suits by adverse claimants, is not a reason for denying relief to a party who comes into court alleging and proving his right to the thing demanded.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    Action to recover a certificate of stock in the plaintiff company deposited with defendant until certain work was performed by contractors.

      Gratz Nathan, for app’lt; Horace Graves, for resp’t.

       Affirming 47 St. Rep., 364.

   Andrews, Ch. J.

The contract upon which the certificate of stock was placed, in the hands of the defendant, as bailee, was never performed by Work, Pfeiffer & Macfarlane, and upon the facts found the plaintiff was entitled to a return of the certificate.

The only defense which the defendant urges in answer to the claim of the plaintiff for the surrender of the certificate is that a judgment against him in "this action will not conclude Work, Pfeiffer & Macfarlane in any suit they may hereafter bring against him as bailee.

The fact that a party may possibly be subjected to a double recovery in the same matter in suits by adverse claimants is not a reason for denying relief to a party who comes into court alleging and proving his right to the thing demanded. The defendant may ordinarily protect himself by bringing a suit in the nature of a bill of interpleader, making the different claimants parties. Ball v. Liney, 48 N. Y., 6. Upon the evidence and findings the plaintiff established its right to a return of the certificate. The consent of Work and Pfeiffer that it should be returned was made known to the defendant before the action was commenced. Macfarlane had also consented, provided Work was authorized to sign his name to the order drawn on the defendant.

This question was litigated on the trial and found in favor of the authority upon sufficient evidence.

There seems to be no merit in the effort of the defendant to prevent the company from regaining possession of the certificate.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    William D. Bailey, App’lt, v. The Rome, Watertown & Ogdensburg Railroad Co., Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Master and servant—Negligence.
    Plaintiff, a brakeman in defendant’s employ, was thrown from a flat car by the brake rod pulling out while he was setting it. It was found on examination that the pin at the bottom of the brake rod which held it in place was gone. The absence of the pin could not have been seen by one working the brake, but an inspection of the brake under the car would have disclosed its absence. The inspection required by the rules of the company had not been made at the last station. Meld, that the question of plaintiff’s negligence should have been submitted to the jury.
    3. Same—Evidence.
    The trial court rejected an offer on the part of the plaintiff to prove that the other brakes on the flat cars taken in at the last station were in a de. fective conditon which rendered them useless. Held,, error.
    Appeal from judgment of the supreme court, general term, fourth department, reversing judgment entered upon a verdict taken at circuit, and granting new trial.

      Oswald P. Backus, for app’lt; Arthur M. Beardsley, for resp’t

       Reversing 29 St. Rep., 755.

   Andrews, Ch. J.

The failure of the defendant to perform its duty to use reasonable care in the inspection of the brake, the defect in which caused the injury to the plaintiff, is the gravamen of the action.

The plaintiff was nonsuited on the ground that there was no evidence of negligence on the part of the defendant. We think the case should have been submitted to the jury. The evidence shows that the plaintiff was employed as brakeman on a freight train of the defendant, running from Norwood to Rome. On the day of the accident, after the train had been made up at Norwood ready to start, five flat cars loaded with railroad iron were placed in the train next to the engine, and the train, consisting of thirty cars, then proceeded to De Kalb junction. The train having been stopped at that station, was started again with a view of placing it on a side track, moving upon a down grade. The plaintiff, in the performance of his duty, attempted to set the brake on the fourth flat car from the engine, and swayed upon the wheel in the usual manner, when the brake rod came out and he was thrown from the car and injured by the moving train.

On examination after the injury it was found that the pin in the bottom of the brake rod, designed to hold the rod in place, was gone. There is no evidence how long this defective condition of the brake had existed. The plaintiff testified that the rod came out easily when he swayed upon it. The absence of the pin could not have been seen by one working the brake, but an inspection of the brake under the car would have disclosed its absence.

It is claimed in behalf of the plaintiff that the evidence would have justified the jury in finding that the pin was out when the train left Norwood, and that the company sent out the car from that place in a defective condition without inspection.

Rule 99 of the company provides that conductors “will be personally responsible for examining the cars in their train at every convenient point, and especially at water stations, and with the help of the men, must know that all cars are in safe condition and no wheels or brakes broken.” The duty of a railroad company to use reasonable care to protect their employes from injury while engaged upon its trains embraces the obligation to use reasonable care in furnishing suitable machinery in the first instance, and to keep it in repair so that the lives of its employes may not be exposed to unnecessary peril. The duty of proper inspection for the purpose of discovering defects which may arise from use, is a part of the duty owing by the companv to its servants.

Where an employe is injured from defective machinery, the fact that he was so injured does not alone raise a presumption of negligence on the part of the company. “ The knowledge of the defect must be brought home to the master, or. proof given that he was ignorant of the same through his own negligence or want of proper care.” Allen, J., Wright v. N. Y. C. R. R. Co., 25 N. Y., 566.

In this case the company had provided for a proper inspection, which, if it had been made, would have led to the discovery of the defective condition of the brake- at Norwood, assuming that the pin was not in the rod when the train started from that place. The rule required an inspection at that point, and if due inspection was omitted-’there, and the injury resulted-from a defect-then existing, a case was made for the jury; because the master is never exonerated by the negligent omission of subordinates to perform-duties which are imposed upon him in his character as master, resulting in injury to other employes.

We think there was enough shown- from which the jury might infer that the pin was not in the rod when the train left Norwood,- and that the failure to discover the defect there was in consequence of the omission to properly inspect the car at that point. It appeared that no attempt had been made to use the brake-between Norwood and DeEal-b Junction, and the pin could not, therefore, have been- broken or displaced by any use- of the brake between these points.

The method of fastening the pin after passing ’it through the rod, as explained, indicates " that it could not have fallen out as the result of the mere motion of the car. There was no indication that the pin was displaced by the effort- to set the brake, since neither the pin nor any broken parts- seem to have been found at the place of the accident

The trial court rejected-an offer on the part of the plaintiff to' prove that the other brakes on the flat cars taken in at Norwood were in a defective condition, which rendered them useless. This evidence was, we think, competent as bearing upon the point whether the flat cars were inspected' at Norwood,- and whether there was any inspection-there of this brake used by the plaintiff.

The evidence of the negligence of the defendant is not direct or positive. But this is an infirmity which attends the investigation of facts in courts of justice in very many cases. But while a verdict founded upon inferences' having no just ■ basis in the proven facts ought not to stand, and where the grade of^ proof - is-such that the inference therefrom of an essential fact is a mere speculation, it is the duty of the court to withdraw the case-from the jury¡ We are unwilling',to say in this case that there was no evidence from which a just inference might not be drawn by the jury that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point.

The judgment should be reversed and a new trial ordered.

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

All concur.


author: O’Brien, J.

text:
    Daniel H. Bennett et al., App’lts, v. Frances S. Draper, Impl’d, Resp't.

      (Court of Appeals,

      Filed October 3, 1893.)

    Bond—Surety—Successors or assigns—New firm.
    A bond recited that the obligors, D. & Co., were bound to B. & Co. for a sum of money to be paid the latter, their successors or assigns; that the firm of D. & Co. expected to borrow money of B. & Co., and wished to give them a continuing security for any moneys it then owed, or thereafter should owe B. & Co., their successors or assigns, and that B. <fe Co. had required such security of D. & Co. The condition was that if the obligors paid the obligees, their successors or assigns, all sums due from the firm to the obligees for loans by the obligees, their successors or assigns, the bond should be void. Held, that the bond did not cover advances made by a new firm of the same name which succeeded B. & Co., but which had a new partner.
    Appeal from judgment of the supreme court, general term, first department, affirming interlocutory judgment sustaining demurrer to complaint.

      J. Woolsey Shepard, for app’lts; George A. Strong, for resp’t.

       Affirming 42 St. Rep., 921.

   O’Brien, J.

The question in this case arises upon a' demurrer by the defendant, Mrs. Draper, to the plaintiffs’ complaint in an action against her as surety upon a written guaranty, in the form of a bond with a penalty. The instrument was given by one mercantile firm to another to secure the payment of indebtedness and advances, the obligor firm being John H. Draper & Co., composed of the defendant Kellack, who has been sued as survivor, the other partner, John H. Draper, having died in July, 1890. The defendant who demurs was not, it seems, a member of the firm, but signed the obligation as surety. The obligee firm to which the guaranty ran was H. C. Bennett & Co., composed, at the time, of Hiram C. Bennett and Daniel H. Bennett; but the plaintiffs in this action, though the firm name and the individual names of the members thereof are in all respects identical with the obligee firm and its members, are not the firm to which the guaranty was given. This arises from a somewhat singular circumstance, which tends to obscure and confuse the real question in the case. The instrument was executed January 28,1881, and on November 30,1884, Hiram 0. Bennett, one of the original obligors, died and was succeeded in the firm by another person of the same name, so that, although the obligee firm was dissolved and terminated by the death of one of its members, there immediately came into existence a new firm, identical in name with the old one, and the names of the members in each case being also identical. The defendant’s contract of suretyship ran to the old firm, and not in terms, at least, to the new, and the debt or advances of money, for which the defendant is sought to be charged, were made to the obligors by the new firm. These facts and the somewhat peculiar language of the instrument itself have given rise to the present controversy. In the absence of language in the guaranty showing that the parties intended that it should survive changes in the partnership and inure to the benefit of the new firm, as well as the old, the defendants’ contract terminated with the existence of the firm to which it was given. Addison on Contracts, 655 ; Story on Partnership, §§ 244-251; Strange v. Lee, 3 East, 489; Metcalf v. Bruin, 12 id., 400; Schmitz v. Langhaar, 88 N. Y., 503.

The instrument was not negotiable or assignable so as to secure new debts or advances made by the new firm, or parties other than the original obligees. Barlow v. Myers, 64 N. Y., 45; McLaren v. Watson, 26 Wend., 430 ; Smith v. Starr, 4 Hun, 124.

Loans or advances made by the old firm on the faith of the guaranty could doubtless have been assigned to the new firm, and •such assignment would carry with it a right of action on the guaranty. Thé complaint does not allege any debt from the obligees to the old firm, but, on the contrary, it appears distinctly that the advances made were by the plaintiffs, the new firm. A copy of the instrument is set forth in the complaint, and the only question that remains is whether from the averments of the pleading, or the language used by the parties in the contract, the plaintiffs have shown that the bond was to inure to their benefit. If that fact does not appear, or cannot be gathered from a fair construction of all the allegations of the complaint, it was, we think, fatally defective, and the demurrer was properly sustained below. After describing the existence and membership of the partnership firms referred to in the bond as already stated, and the changes therein by death, the complaint proceeds to aver that in January, 1881, when the instrument was given, the obligor firm was then indebted to the obligee, being the old firm, for money loaned and advanced, and applied for further credit and advances, whereupon the guaranty was executed and delivered whereby the obligors bound themselves to pay the obligees, “their successors or assigns, all sums of money not exceeding $20,000 which shall at any time be due or owing from the said firm of John H. Draper & Co.,” the obligors. This was more than three years before the firm to which the security was given, and had made the advances, was dissolved by the death of one of its members. It cannot be presumed or found from any reasonable construction of this language that the parties contemplated a change in the firm to which the instrument ran, or that advances would be made by any new firm of the same name. The state of things that now appears was not foreseen, and it would be straining language to hold that it was within the fair scope and purview of the guaranty to secure the payment of moneys, not advanced by the obligee, but by a new and different firm that succeeded it.

The words “ successors and assigns ” of the obligee are given effect when we hold that the debt secured was capable of being assigned or transmitted,» and could be collected by another firm upon which it devolved. The complaint then states that at different dates between the 2d day of April and the 18th day of June, 1887, more than six years after the instrument was given, the plaintiff, a firm that did not exist until long after the security was .given, made advances to the obligors amounting in the aggregate to $13,500, for which sum, with the interest thereon, the defendant is sought to be charged as surety. There would be but very slight ground for the plaintiffs’ contention in this case except for the frequent and somewhat unnatural, if not inappropriate, use by the parties, in the writing itself, of the words “ successors or assigns.”

They are used in four places or paragraphs, one of which has been referred to. At the beginning and in the first sentence, which contains the obligating clause, it is recited, after describing the parties, that the money is to be paid to the obligee named, “ their successors or assigns.” This language would be quite important if the action was one by the plaintiffs to collect advances or loans made by the old firm on the faith of the guaranty, and which had been in some way transferred to them, but they furnish no ground for the claim that the guaranty was intended to cover advances or loans made long subsequently by the plaintiffs themselves. The broad claim of the plaintiffs is that by the use of these words in the instrument the defendant became bound to pay all loans or advances not exceeding the limit specified, made to the obligors, not only by the old firm, but also by the new firm, which was its successor. It must be admitted that there are some words in the instrument which, standing alone, would seem to give color to this contention. But upon a careful reading of the whole paper, which appears in the report of the decision below, Bennett v. Draper, 62 Hun, 524; 42 St. Rep., 921, and, therefore, need not be quoted further here, and a fair consideration of all the circumstances, including the situation of the parties, the unforeseen changes that occurred subsequently, and the general purpose that they evidently had in view, we think that the defendant’s contract does not cover the claim stated in the complaint. It is, no doubt, true that the same rules of construction applicable to contracts in general apply here, Gates v. McKee, 13 N. Y., 232 ; and that is the intention of the parties to be gathered from the language employed, and, if need be, from the surrounding circumstances, must govern. Continental Ins. Co. v. The Ætna Ins. Co., 138 N. Y., 16; 51 St. Rep., 712.

The case must be disposed of in the same way and the same principles applied as if the old firm, to which the obligation in terms ran, had disappeared, in name as well as in fact, upon the dissolution produced by the death of Mr. Bennett. The plaintiffs’ contention, if upheld, would hold the surety liable in such ease for advances made at any time to the principal by any firm or party, providing it could be shown that they were the successors of the original obligee. It would be quite unreasonable to hold in such cases that a surety intended to contract indefinitely with parties unknown to him at the time, and that his obligation passed unimpaired through all changes- and mutations of the firm to - which it was given, and that a-remote successor of the original obligee, by virtue of a purchase of its assets or otherwise, can use it in the same way as if it was made directly to - him and for,' his benefit. It cannot be supposed that such a result was within the contemplation of the parties. Hothing can be found in the record that would' warrant the conclusion that the defendant contracted to be responsible to the plaintiffs for moneys advanced by them-. Her ‘obligation is limited to loans-made by the firm, which it may be-presumed she knew, and with which alone she had contractual relations.

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

All concur, except-Andrews, Gh. J., not voting.


text:
    In the Matter of the Application of The Mayor, etc., of the City of New York, to Acquire Wharf Property, etc.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. JURISDICTION.
    The powers of a judge of a court, with respect to actions or proceedings pending ■ before the court over which he presides, terminate when he ceases to be a judge, or when his office expires by resignation,- removal, expiration of his term or otherwise, except where the rule has been modified by statute.
    2. Same. '
    Where a judge of the superior court was designated to hold circuit court and special term of the supreme court, and pending the determination of a motion resigned his office, and was appointed a justice of the supreme court to fill a vacancy, he thereby loses jurisdiction of the matter, and has no power to determine the same.
    3. Same—Code, § 25.
    Section 25 of the Code, which empowers a judge out of office to settle a case or exceptions, or make return of any proceedings had before him while in office, does not enable him after his general judicial functions have ceased to decide an issue or motion.
    4. Same—Code, § 26.
    Section 26 of the Code relates to a proceeding before the judge out of court acting as an officer, and has no application to an issue or motion in an action or special proceeding heard by the court before the'office of the judge holding the same was vacated.
    5. Same—Code, § 52.
    Section 52 of the Code, which confers power upon a judge of the superior court or court of common pleas, who has heard a case in the supreme court, under a designation by the governor, to decide the same after the designation expires, applies only to a case where the judge who heard the case still continues to be-a judge of the court from which he was designated, and not to a case where both the designation and the judicial office have become vacant by resignation.
    Appeal from judgment of the supreme court, general term, first department, reversing order overruling preliminary objections and appointing commissioners of estimate.

      Charles J. Blandy, for app’lt; Gratz Nathan, for resp’ts.

       Affirming 53 St. Rep., 427.

   O’Brien, J.

The order appealed from reversed an order appointing commissioners to estimate the damages in an application by the city, through the proper department, to acquire land under water and certain wharf property for public use, in order to improve the water front in or adjacent to certain streets. The application was submitted to Judge Ingraham at a special term of the supreme court, at which he presided. At the time he was a judge of the superior court of the city of New York, designatad by the governor to hold circuits and special terms in the supreme «court, under the provisions of § 12, art. 6 of the constitution and § 236 of the Code.

After the application was submitted to him and before the decision he resigned the office of judge of the superior court and was appointed a justice of the supreme court by the governor, to fill a vacancy in that office then existing, and in his capacity of justice of the supreme court, presiding at the special term, he decided the application and made the order which was appealed from March 18, 1892. The general term .reversed upon the .ground that the judge who made the order lost jurisdiction of the matter upon his resignation of the office of judge of the superior court. The statute under which the proceedings were instituted conferred power upon the court to hear and determine the questions involved and not upon a judge out of court. Laws 1882, chapter 410, §§ 715, 964, 965. In general, it may be said that the powers of a judge of a court, with respect to actions or proceedings pending before the court over which he presides, terminate when he ceases to be a judge or when his office expires by resignation, removal, expiration of his term or otherwise. In ■order to prevent a failure of justice, or great expense and inconvenience to suitors or parties having business before the court, or before judicial officers, this rule has been, in exceptional and specified cases, modified by statute.

There is no reason, however, for attempting, by any strained or doubtful construction of these statutes, to bring cases within them not embraced within the language used or their plain scope and intention. This would be so in any case, but it would seem to be specially applicable to a case like this, where private property is sought to be obtained for public use without the consent of the owner. In such a case, where the power is challenged at every step, there ought not to be any question in regard to the jurisdiction of the court to divest the owner of the title and transfer it to another.

In this case, after the application was made and submitted, and before any decision was rendered, the judge of the court before which it was heard resigned, and thus both his designation by the governor to act and his office became vacant. All further power or jurisdiction over the case was lost unless saved by some statute. The Code (§ 25) empowers a judge out of office to settle a case or exceptions, or make return of any proceedings had before him while in office, but this does not enable him, after his general judicial functions have ceased, to.decide an issue or motion. Section 26 is specially applicable to the city and county of New York and the county of Kings, and relates to special proceedings instituted, or a proceeding commenced, before a judge out of court in an action or special proceeding pending in court,and authorizes a continuance of them before another judge of the same court. The precise scope and meaning of this provision is left in some doubt by the decisions, but it is safe to affirm that it relates to a proceeding before the judge out of court, acting as an officer, and has no application to an issue or motion in an action or special proceeding heard by the court before the office of the judge holding the same was vacated. Woodruff v. Imperial Fire Ins. Co., 90 N. Y. 521; Dresser v. Van Pelt, 15 How., 19.

Section 52 provides -that in case of the death, sickness, resignation, removal from office, absence from the county or other disability of an officer before whom a special proceeding has been instituted, where no express provision is made by law for the continuance thereof, it may be continued before his successor, etc. This section also applies, not to a proceeding in court, but to one before an officer, and manfestly this case is not within it. The only statutory provision upon which the learned counsel for the corporation relies or can rely to uphold the jurisdiction to make the order in question is the last part of § 236, which is the statute wherein the legislature conferred power upon the governor, in pursuance of the constitution, to designate judges of the superior court and court of common pleas to hold circuits and special terms in that city. This designation must be in writing and must specify the terms to be held and the judge who is to hold them. The last paragraph was added in 1880 and is as follows: “ And a judge thus designated may, after the expiration of the period of such designation, decide, finally determine and dispose of any action, proceeding or motion that may have been tried or heard before him, and such judge, during the period of designation, possesses, within the city of Hew York, all the powers of a justice of the supreme court in and out of court, to make orders in any action or special proceeding in the supreme court.”

This provision confers power upon a judge of the superior court or court of common pleas, who has heard a case in the supreme court, under a designation by the governor, to decide the same after the designation expires. But it applies only to a case where the judge who heard the cause still continues to be a judge of the court from which he was designated, and not to a case like this, where both the designation and the judicial office have become vacant by resignation. When Judge Ingraham heard this ease he was a judge of the superior court. When he decided it he was a justice of the supreme court. The designation of the governor empowered him to perform some of the duties of a justice of the supreme court, within a specified political division of the state, but he held the same office as before and no other. The fact that he became a justice of the supreme court at the same moment of time that he ceased to be a judge of the superior court does not change the case. The question remains the same as if a period of time intervened between the two events, or another person had been appointed to fill the vacancy in the supreme court. All the jurisdiction which he had to make the order in question was acquired by and after his appointment to the supreme court. He did not carry with him into the new office any jurisdiction that he acquired in the old. He had the same power and no other to decide a case heard by him in the supreme court, as a judge of the superior court, that was possessed by any of his associates in the supreme court who had not heard the case at all. The jurisdiction which he acquired by the submission of the application did not survive his resignation and attach to him in his new capacity. It has been held that where the term of a justice of the supreme court expired during a trial, and he immediately entered upon a new term under a re-election, that he had jurisdiction to conclude the trial and decide the case. Kelly v. Christal, 16 Hun, 242.

That case was mainly decided upon the fact that after the new term commenced the parties appeared before the judge and went on with the case without raising any question or making any objection until after the decision. Even if what was said in that case with respect to the continuous power of a judge who is his own successor be correct, it cannot well be applied here, as Judge Ingraham was not his own successor, nor were all his judicial acts performed as a judge of the same court. He was the successor of a justice of the supreme court whose office became vacant by death, and it cannot be said, as it was in that case, that he was a judge of the court at every moment of time while the cause was before him, and hence retained jurisdiction.

We think that the views expressed by the general term are correct, and that the order should be affirmed, with costs.

All concur.


author: Beach, J. Lawrence, J.

text:
    In the Matter of the Application of Benjamin D. Stevens for writs of habeas corpus and certiorari.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Children—Mayor cannot grant license for their employment in SINGING AND DANCING AT A THEATRICAL EXHIBITION.
    The mayor of a city has no power under § 392 of the Penal Code, as amended in 1892, to grant a consent for a theatrical exhibition which includes singing or dancing by a child.
    Appeal from order discharging writs of habeas corpus and certiorari.

    Benjamin D. Stevens, the appellant, who is manager of a theatrical troupe, publicly exhibited in the Broadway Theatre, in the city of Hew York, on September 5, 1892, a little girl named Lillian Kline, aged five years, in singing and dancing, in a play called “Wang," performed therein. He was arrested September 7, 1892, upon a warrant issued by a police justice of said city, at the instance of the Hew York Society for the Prevention of Cruelty to Children, charged with a misdemeanor in violating § 292 of the Penal Code, which prohibits the exhibition of a child under the age of sixteen years in singing or dancing. Upon the examination which thereupon took place the facts alleged were proven, but he claimed to have a consent in writing from the mayor of the city of New York, legalizing the exhibition. He was duly committed by the magistrate to await the action of the grand jury. Immediately writs of habeas corpus and certiorari were issued by this court. The warden returned the body of the appellant, in custody, with the commitment. The magistrate returned the complaint, warrant of arrest, and testimony taken on the examination. Special demurrers were then interposed to each return, and a hearing had before Mr. Justice Beach, who dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion. From the orders of dismissal the present appeal is taken.
   The following is the opinion of the special term :

Beach, J.

Prior to the act of 1892, and under § 292 of the Penal Code, the written consent of the mayor could be given to the employment of a child in certain ways mentioned by the act of 1892, entitled : “An act to amend § 292 of the Penal Oode, relative to the licensing of children in theatrical exhibitions,” the consent of the mayor was extended to include such exhibitions.

The third subdivison of § 292 specifies certain of the prohibited acts in these words:

“ Third. In singing or dancing, or playing upon a musical instrument, or in a .theatrical exhibition, or in any wandering occupation.”

The question raised in these proceedings is whether or not the mayor can grant a-consent for a “ theatrical- exhibition ” which includes “ singing ” or “ dancing ” by the child.

I am of opinion that he cannot. The intent of the legislature is to be ascertained, and when settled, followed by the court, ■in construing the enactment. But this intent is not to be gathered from the shifting uncertainties of outside opinion or circumstance, likely to be modified or wholly changed when subjected to proof and judicial examination, but rather from the signs and indications furnished by legislation upon the particular subject then under legislative consideration.

Judicial construction is seldom assisted by that applied to other enactments, which is always influenced or controlled by particular verbiage. Such are the cases of The Society for Reformation of Juvenile Delinquents v. Diers, 10 Abb., N. S., 216 ; Bell, Treas. Philadelphia, v. Mahn, 121 Penn. St., 225.

There is no doubt that the court can disregard the exact and literal wording of a legislative act if, upon a survey of the whole act, and the purpose to be accomplished, or the wrong to be remedied, it is plain that such exact or literal rendering of the wording would not carryout the intent of the legislature. Bell v. The Mayor, 105 N. Y., 139, 144; 6 St. Rep., 847.

This principle is not directly applicable ■ to the question at bar, because exact and literal wording is not opposed to plain intent.

The point involved here relates to the inclusive power of the term “ theatrical exhibition” relative to “singing” or “ dancing.” These terms are used in the act under-review, and the court, to ascertain the legislative intent, is remitted to" the use by the legis- , lature of those, terms, and-,the legal effect of that use.

Lucien Oudin, for app’lt; De Lancey Nicoll, dist. atty., and Elbridge T. Gerry, for resp’ts.

The original act and the act as amended contain specified prohibited acts.

These under the present section, and included in paragraph three, are plainly five in number, First, “ singing; ” second, “ dancing; ” third “ playing upon a musical instrument; ” fourth, “in a theatrical exhibition; ” fifth, “in any wandering occupation.” The answer to parts of the argument urged by learned counsel for the defendant and relators is the obvious Seduction from the particular specifications that each has a distinct and separate significance, and, therefore, no one is inclusive of any other.

The final clause of the amendment, “ but no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section,” is of little aid to judicial construction.

The third subdivision • is not named, but the reason for its omission is that a violation of its parts was authorized when consent of the mayor was obtained. This applies only to the term “ theatrical exhibition,” leaving singing, dancing, playing upon a musical instrument, and wandering occupation in the same status as the other subdivisions.

The substitution of the word “ dancing ” for “ dancer ” seems to indicate an intention to enlarge the scope of prohibition beyond a signification applicable only to a professional.

It is also apparent that the third subdivision was properly omitted, because it includes what is subject to a consent by the mayor, to wit: playing on a musical instrument at a concert, and theatrical exhibitions.

The court is of opinion that the tenor of the act, its title and specific designations, by explicit words, will not permit the inclusion of singing and dancing by the words “ theatrical exhibition.”

There are under the latter term many acts not harmful or inappropriate within the limit of children’s effort, and such' may be permitted. Those of singing and dancing are excluded in the wisdom of supreme legislative authority, which cannot and should not be overruled by the courts, especially when exercised with the humanitarian object of protecting those who, from youth and consequent inexperience, are unable to guard and protect themselves.

The motions for a mandamus are denied, the writs of habeas corpus and certiorari discharged, and the prisoner remanded.

Lawrence, J.

We think that the construction given to chapter 309 of the Laws of 1892, amending § 292 of the Penal Code, by the learned justice before whom the writs of habeas corpus and certiorari were brought at the special term, was correct; and, adopting his opinion as our own, an affirmance of the orders appealed from is directed, and the prisoner remanded.

Van Brunt, P. J., and O’Brien, J., concur.


author:
Herrick, J.
      Putnam, J. (dissenting).

text:
    In the Matter of the Application for a Peremptory Mandamus to Issue to James H. Manning, Mayor of the City of Albany.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    Election—Appointment op inspectors—Albany.
    The board of election commissioners for the city of Albany for the year 1893 was composed of the mayor and president of the common council, democrats, and Gk, who was appointed by the republican members of the common council. At a meeting called by the president and Gk resolutions appointing inspectors and poll clerks named on lists presented by said president and &., respectively, were carried bjr their votes against the mayor, and the list presented by the latter, claiming under the circumstances to be the minority member, was rejected by a similar vote. On these facts, the court at chambers granted a mandamus to compel the mayor to cause the publication of the lists adopted as aforesaid. Held, error.
    (Putnam, J., dissents.)
    Appeal from order of special term directing that a peremptory mandamus should issue to the mayor of Albany, commanding him to publish, as the law requires, the list of inspectors and poll clerks selected and appointed by the board of election commissioners of the city of Albany.

      John A. Delehanty, for app’lt; Reilly & Hamilton (Edwin Countryman, of counsel), for resp’t.
   Herrick, J.

In the city of Albany election officers are appointed by a board of election commissioners, pursuant to § 15, chapter 171 of the Laws of 1892; that portion of it pertinent to this inquiry.reads as follows: “All inspectors of election, poll clerks and ballot clerks in the city of Albany shall hereafter be selected and appointed by a board of election commissioners, which shall be composed of three members, consisting of the mayor, the president of the common council and a third member to be selected by those members of the common council of different political faith and opinion on state issues from those of the said mayor, which shall also have power to fill all vacancies which may from any cause arise; but if from any cause whatever the said board of election commissioners should fail to fill such vacancy, or if such vacancy should occur on the day of election, the chief of police of said city is hereby empowered and directed on his own motion to fill such vacancy. It shall be the duty of said board of election commissioners, at least thirty days before any election, for each election district in said city to select to serve as inspectors of election three persons (two of whom on local issues shall be of different political faith and opinions from their associates, and of the same political faith and opinions as the majority of the electors in said district, as determined by the official canvass of the votes casts by said electors for the different candidates for mayor at the previous charter election), who shall be citizens of the United States and of the state of New York, of good character and able to read and write the English language understandingly, qualified voters in the city of Albany, residents of the election district for which they are appointed, and not candidates for any office to be voted for by the electors of the district for which they shall be selected. The inspectors of election so selected for the city of Albany to represent the party of the same political faith as the minority member of said board shall be selected solely by such minority member. Immediately after, and within twenty-four hours from the time such persons -are so selected, the mayor of said city shall cause the names of the persons so selected for inspectors and for poll clerks, as hereinafter provided, stating opposite to each name the residence of such pbrson, his occupation, and the district in which he is to serve, to be published three times consecutively in each of the official city newspapers, which official publication shall be deemed & good and sufficient notice.” Subsequent sections of the act provide for the appointment of poll clerks and ballot clerks in a similar manner.

In the spring of 1892 James H. Manning was elected mayor of the city of Albany upon the democratic ticket, Charles H. Armatage was elected president of the common council by the democratic members thereof, and during the same year Clifford D. Gregory was selected the third member of the board of election commissioners by the republican members of the common council of said city. This board so constituted, with the mayor acting as chairman or president thereof, designated the election officers for the election held in the fall of 1892.

On the 3d day of March, 1893, Charles H. Armatage and Clifford D. Gregory,as commissioners of the board of elections, signed and issued a notice or call for a meeting of such board upon the 4th day of March, 1893, for the appointment of election officers to serve at the then coming spring election, which call or notice was served upon Mr. Manning.

The members of the board met pursuant to such notice, and upon motion of Mr. Gregory, and by the vote of Mr. Gregory and Mr. Armatage, Mr. Armatage was elected chairman. The board then proceeded to designate election officers.

It appears that since election officers had last been selected by the board the boundaries of nearly all the election districts in the city of Albany had been changed.

From the minutes of the proceedings of said board, it appears that many motions and resolutions were offered and carried or lost, and that upon all these motions except two, one that all votes taken upon questions be taken by ayes and noes, and another, a motion by Mr. Manning that his designation of inspectors of election be spread upon the minutes, which two motions were adopted unanimously, Mr. Gregory and Mr. Armatage voted together and Mr. Manning voted alone.

Mr. Manning offered a resolution that the persons whose names were on the list attached to such resolution be selected and appointed to serve as inspectors of election to represent the democratic party. The resolution also recited that it had been already determined by this board, at its last regular meeting, that in each of said districts where two persons were named said persons so named were of the same political faith and opinions as the majority of the electors in said several districts respectively, to wit, members of the democratic party.

This resolution, it will be observed, was substantially a determination by the board of the number of inspectors of election allotted to the different parties in the several election districts in the city, and also a designation of the persons to serve in those districts, on behalf of the democratic party. This resolution was beaten, Messrs. Armatage and Gregory voting against it, and Mr. Manning for it.

Mr. Armatage then offered a resolution designating as inspectors of election in the several election districts in the city two in .some and one in others, which he claimed to be the democratic list. The resolution was adopted by the vote of Messrs. Armatage and Gregory, and Mr. Manning voting against it.

Mr. Manning raised a question that the allotment of the inspectors of election in the several districts was not in accordance with the law; that where two were designated they were not of the same political faith and opinions as the majority of the electors of the several districts for which they were named, as determined by the vote cast for mayor at the last preceding charter election. His objection was overruled, and upon appeal the decision of the chair overruling his objections was sustained by the vote of Messrs. Armatage and Gregory.

The effect of the adoption of this resolution was of course a determination of the districts in which the democrats were to have two inspectors of election and the republicans one, and vice versa.

Mr. Manning then, claiming to be the minority member of the board, presented a paper in which he declared that he selected the persons named therein to serve as the democratic inspectors of election in the several election districts in the proportion determined by the last preceding resolution.

Mr. Gregory then offered a resolution that the persons whose names were subjoined to it be appointed and selected as republican inspectors of election, which resolution was adopted by the votes of Messrs. Armatage and Gregory, Mr. Manning declining to vote on the ground that as a minority member he had no right to vote for republican election officers. The names on the lists presented by Messrs. Manning and Armatage are, with a very few exceptions, dissimilar.

The Manning list as originally presented gave the democrats the' majority in the same number of districts as were awarded to the democrats at the last preceding selection of election officers by the board; the Armatage resolution gave them the majority in a lesser number of districts, and increased the number of republican election officers to a corresponding extent.

It appears in the case that ever since election 'officers have been appointed in the city of Albany it has been the custom of the democratic general committee of the city of Albany to prepare and present to the appointing power a list of the names of persons to be appointed as the democratic election officers, and that such persons have always been appointed, and it was so done by the present board when it designated election officers for the fall election of 1892.

That such a list was prepared and presented by said committee at this time, and that the list designated by Mr. Manning contains the names of the persons upon such list.

Messrs. Gregory and Armatage claimed that the respective lists for which they had voted, and only those, contained the names of the election officers designated by the board, and that the names so selected were the ones to be published pursuant to the statute, and sworn in as such election officer’s.

It being the duty of the mayor to publish the list of names selected by the board, Mr. Manning proceeded to publish as the republican list-of inspectors of election the names in the list contained in the resolution offered by Mr. Gregory, and voted for and declared carried by the votes of Messrs. Gregory and Armatage, and as the democratic list the names contained in the list presented by himself, and claimed to have been designated by him as the minority member of such board, and omitting and refusing to publish as democratic election officers the names of those contained in the resolution offered by Mr. Armatage, and declared carried by the votes of Messrs. Armatage and Gregory.

Mr. Armatage applied for a mandamus to compel Mr. Manning, as mayor of the city of Albany, to publish the list of election officers appointed by the board, contending that the names included in the two lists offered and voted for by Mr. Gregory and himself were the ones, and the only ones, legally selected by said board for that election.

An order to show cause why a writ of peremptory mandamus should not issue was made returnable at a special term to be held at chambers at 4 o’clock in the afternoon of the same day on which the order to show cause was granted. A peremptory writ, of mandamus was granted at such special term held at chambers,, directing Mr. Manning, as mayor, to publish such list of election inspectors, poll clerks and ballot clerks as was presented by and upon motion of Mr. Charles H. Armatage, an appeal was taken from the order granting such writ to this court and a stay of proceedings was granted pending the hearing and determination of such appeal. Upon the return of the order to show cause, objection was taken that a special term held at chambers had no jurisdiction or authority to issue a writ of mandamus; this objection was overruled, and in this we think the learned justice erred.

The order to show cause was made returnable to a special term to be held at chambers; the order that the peremptory writ issue is entitled as having been made at chambers. A peremptory mandamus cannot be granted at chambers. People ex rel. Lower v. Donovan, 135 N. Y., 82; 47 St. Rep., 834; Matter of Wadley, 29 Hun, 12.

While this is sufficient perhaps to dispose of this appeal, yet, as the other questions presented are ones that are liable to arise from time to time under the peculiar election law of the city of Albany, it is perhaps well to consider also the merits of the case.

It will be seen that the real question involved is, who is the minority member of the board of election commissioners, and who, as such, has the right to designate the election officers to represent the party of the same political faith as himself ? This presents an interesting question and one not altogether easy of solution.

The rule is well settled that statutes should receive a sensible construction, such as will carry into effect the legislature’s intention and avoid unjust and absurd conclusions. Church of the Holy Trinity v. United States, 143 U. S., 457; People v. Lacombe. 99 N. Y., 43.

The intention and spirit of the law must be sought, and must, if possible, be given full force and effect. Prior, contemporaneous, or even subsequent legislation upon the same subject, or in any wise relating thereto, may be resorted to as aids to the proper interpretation of a statute.

The substance of the law relating to the appointment of election officers in and for the city of Albany first appeared in chapter 298 of the Laws of 1883, title 21, which provided that such election officers should be selected and appointed by the board of police commissioners of said city, and further provided that “ the inspectors so selected for the city of Albany to represent the party of the same political faith as the members of the police board, * * * in the minority, shall be selected solely by the minority members of said police board.” This provision, it will be seen, is almost identical with that contained in the act of 1892, as above cited.

At the time of the passage of the act of 1883, and until the passage of chapter 99 of the Laws of 1892, the board of police commissioners of the city of Albany was composed of the mayor of said city and four police commissioners, elected as such ; these commissioners were all elected at the same time; an elector could only vote for two of them, the intention being that each of the dominant parties should elect two members of such board. The mayor was elected to serve for a term of two years ; police commissioners were elected to serve for four years. The result of this might be, and sometimes was, that the police commissioners who were the minority members during two years of their term of office were a part of the majority during the other two years.

By chapter 99, of the Laws of 1892, the law providing for the election of police commissioners for the city of Albany was repealed, and it was provided that thereafter police commissioners should be appointed by the mayor, in the manner designated in such statute. The act contained no restrictions upon the mayor as to the political faith of the persons appointed police commissioners.

It was evident by this and other acts relating to the city of Albany, passed at the same session of the legislature, that it was intended to do away, as far as possible, with so-called non-partisan boards of commissioners.

It is apparent that under chapter 99 a police commission could, and probably would, be appointed composed entirely of persons of the same political faith, and then we would have a commission of one party selecting election officers to represent all parties; to avoid so evident an abuse, chapter 99 was followed up by chapter 171 first referred to. It is then perfectly apparent that the intention, of the legislature was to have election officers in the several election districts of different political faith; to have men appointed who politically would have nothing in common, ex-, cept the desire to guard and protect the interests of the party they represented from invasion by the other ; to have men selected who would not act in harmony with each other; but who would be in a condition of watchfulness and hostility to each other, so that the electors of the several parties would have guards, watchers and protectors, and each party being guarded and protected in its rights from invasion by the other, all would be protected and an honest election secured; and as the means of carrying this out, it was the evident intention that the representatives of one party should not select the election officers for the other party, but that such selection should be made by persons in political antagonism to each other.

Bearing in mind this intention and evident spirit of the law, let us see if it can be so interpreted as to carry into effect that spirit and intention.

The law provides for the selection of three inspectors of election, “ two of whom on local issues shall be of different political faith and opinions from their associates.” It then provides that the inspectors of election of the same political faith as the minority member of said board shall be selected by him. It is obvious, then, that when he has made his designation or selection of inspectors, that their status is fixed, and it then becomes the duty of the majority members of the board to designate for the remaining inspectors of election persons of the opposite political faith to those designated by the minority member.

The wording of the last cited provision of the act is peculiar. It is not a provision that the representative of each party in the board shall designate the election officers for that party; neither is it a provision that the members of the board shall select the election officers who are of the same political faith as themselves. The inspectors of election so selected to represent the party of the same political faith as the minority member of said board shall be selected solely by such minority member.” There may be other members of the board of the same faith as the minority member.

It recognizes the fact also that there may be divisions on local issues ; divisions that we all know are sometimes more absorbing for the time being than those on state issues; and while in the selection of the third member of the board it requires such selection to be made by those of opposite political faith on state issues to that of the mayor; yet, when it comes to the selection of the inspectors of election, the requirement is that two of them shall be of different political faith and opinions from their associates, not on state, but on local issues.

It is common knowledge that in municipal elections persons of opposite political faith on state and national issues have combined together on local issues, and bargained away the interests of their parties on state"or national issues to subserve their local interests. Under the provision of the law, as we understand it, no such combination can be made. A careful reading and consideration of the provision of the statute last cited make their purpose apparent.

As we have seen, the general spirit and intention of the law is to secure the appointment of inspectors of election antagonistic to each other, and that the representative of one party shall not select the inspectors for the other party ; and so far as the division of the inspectors is concerned the test is, their antagonism on local issues, and those portions of the statute last referred to are intended to insure the carrying of such intention into -effect by compelling the appointment of those of the game political faith as the minority member; giving him absolute protection against the majority members of the board in his selection of members of his own party faith, and preventing any combination between two members of the board to select all the election officers; for when such a combination is formed, the one who is combined against becomes the minority member, and thus entitled to designate a list of inspectors himself, thereby defeating the object of the combination; all that is left for those who have combined together to do being to appoint, as the remaining election officers, persons of an opposite political faith to those designated by the minority member, thus forcing them to carry out the spirit ¿nd intention of the statute, which possibly they may have combined together to thwart and defeat.

Who is the minority member ?

It must be apparent, I think, by a very brief consideration of the matter, that the status of parties does not determine whether a member of this board is a majority or a minority member; the republicans may elect the mayor and the democrats may elect a majority of the common council, and the president of the common council would naturally be a democrat, and the majority of the common council being of opposite political faith to that of the mayor, the third member would be a democrat.

The member selected by the common council is not necessarily the minority member; the statute does not speak of him as such; he is designated by it as “ third member.” The members of the common council who select him may be in the majority or in the minority in the city, county, state or nation; they may be the majority or the minority of the common council.

The party in the majority in the city, county, state or nation, at the time that the members of the board are chosen, may be in the minority at the next election ; nothing is to be determined by the political faith of the inspectors to be appointed; in one election district the majority may be of one party, and in the adjoining district of the opposite; and taking the city as a whole, the majority of the inspectors of election may belong to the party which is in the minority on the total vote. The third member may be in a political minority in the board so far as state issues are concerned, the issues which determined his selection, and yet. be one of the majority of the board on local issues, which issues, as we have seen, determine the selection of inspectors of election.

It must be apparent, therefore, that the majority party does not determine who are the majority or minority members or member of such board. The only requirement of the statute as to the third member is, that he shall be chosen by the members of the common council of opposite political faith on state issues to that of the mayor, the intention of course being that the person so chosen shall also be of opposite political faith on state issues to that of the mayor.

The statute does not contemplate that he shall name the inspectors of his political faith; he may or may not be the minority member of the board; if he is, then he names or solely selects-the inspectors of his political faith; if he is not, then as one of the majority of the board he joins in selecting inspectors of the opposite political faith to that of those named by the minority member.

The board of election commissioners is appointed to hold office-for a term which covers a number of elections, and it is needless-to observe that it is no new thing for men to change their political faith, so that what would be a political majority in the board at one period of its existence might very well become a political minority at another period.

I hardly think that any one would contend that where there had been such a change of faith, or where the composition of the board had been changed by the death, resignation or removal from office of any one of the original members of the board, and one of a different faith installed in his place, that the original members of the board still retained their position as majority and minority members of the board. The status then of the members of the board does not become fixed as first organized and thereafter remain unchangeable; to hold that would be placing a construction upon the statute which, it seems to me, would lead to a violation of its spirit and intention, and lead to unjust and absurd conclusions.

That the status is not so fixed at the time of their election or the election of any one of them I think is also indicated by the law from which this is taken, the one authorizing the appointment by the police commissioners of the city of Albany, and where, as before stated, the police commissioners that were elected as such being elected for a term of four years, and the mayor being elected for two years, and the.statute at that time prohibiting his re-election, it was possible for those who were the minority members during the first period of their term to be a part of the-majority of the board during the other part of their term.

Neither, I think,,can it be consistently contended that when, by a mischievous or corrupt combination or by a union of members-on local issues who are of opposite political faith on state or national issues, the one who was, theretofore, a minority member becomes one of the majority, he can at the same time still retain and exercise the power that the statute gives to the minority member. Such a construction would leave one member of the board without any voice in the selection of election officers. Such a construction would also lead to the very abuses and dangers to be apprehended from permitting a board or commission, the members of which are all of the same political faith, to appoint the election officers, not only for their own, but for the opposing political party.

If, by an honest change of political faith, the minority of the ■ board becomes the majority, it should only seek to control, and, it seems to me, would only be permitted to control the, appointment of the inspectors for its own party, leaving the remaining member of the board to select those for his party, and not seeking or being permitted to control the appointment of officers for both parties. And I can see no reason for a different rule when the minority becomes the majority, not by an honest change of political belief, but by a mischievous or corrupt combination, or by a union "upon local issues; to hold the latter would be to hold that within the intention and spirit of the law all the persons appointed election officers may be appointed by members of the same faith and opinions upon the very issues the law says the inspectors shall be divided upon ; this manifestly leads to an unjust conclusion, is contrary to the intention of the statute, and is, therefore, contrary to the canons of statutory construction.

How then is the question of who is the minority member to be determined ? One way is by the actions of the different members of the board from time to time, which indicate who is, in truth, within the meaning of the statute, the minority and who are the majority.

The objections that are made to this construction are, that members of the board may secretly combine together, or that they may divide their votes on different questions that come up, and only vote together upon the appointment of inspectors, or that there may be a secret change of political faith, or that the majority members may honestly disagree upon the names of the persons to be appointed by them, and then that no appointment ■can be made unless the third member votes with one or the other of them, or that there may be a difference of opinion as to whether some of the persons named are fit persons to serve as election officers.

These objections do not in anywise affect the principle, but simply present difficulties in applying it, difficulties in discovering the fact whether in truth the minority has become a part of the majority of the board, whether the differences are over particular persons to be appointed, or whether there has been a change in the political complexion of the board by honest change of political faith, by mischievous combination, or by a union upon local issues of those opposed to each other on other political issues. The facts in this case do not present any of these apprehended difficulties. It will be time enough to meet them when they arise.

The language used is plain and unambiguous, the words majority and minority are words in common use, and have ordinarily a well understood meaning, and there is no occasion to give definition of those words here. “ The words of a statute if of common use are to be taken in their natural, plain, obvious and ordinary signification.” People v. Wemple, 115 N. Y., 802-7; 26 St. Rep., 830.

If we give the words used the same meaning that we would if they were used in any other statute, we will have no difficulty in determining who are majority members, and who are the minority ; it will be by seeing who are acting in concert, and who stands alone; it is only in attempting to solve that meaning by political considerations, and by the political beliefs of the members of the board, that causes any difficulty to arise in determining the meaning of the words used.

The members of the board may so conduct themselves as to make it difficult to discover who are acting together, and who is acting alone, but when that is discovered the way is clear. The language used must be given its natural and obvious meaning. Bank v. Colgate, 120 N. Y., 381-94; 31 St. Rep., 431.

Let us endeavor then to determine the question the same as we would if it was a statute relating to a private, instead of a political or municipal corporation, by seeing who are acting in concert with each other, and who stands alone in the board.

It is apparent from the proceedings in this case that, whether from a change in political belief, or from a perverse or mischievous combination, or from a union on local issues, the majority of this board is differently composed than it was when last it met to perform its official duties. Then Mr. Manning and Mr. Armatage were acting together; now, Messrs. Armatage and Gregory are acting together, they unite in the issuing of the notice or call for a meeting of the board; Mr. Manning formerly presided over its meetings; they unite in electing Mr. Armatage to preside in his place; they united in awarding to the democrats the majority in a lesser number of the election districts of the city than had been awarded to them at the last selection of election officers, although no election for a mayor for the city of Albany had intervened.

There is no disagreement over particular names of persons, nor ■any question raised as to the fitness of any person named to serve as an election officer. The disagreement and division is as to the -entire lists of names presented.

Ever since this method of selecting election officers has been in vogue it appears to have been the custom to appoint as democratic election officers those persons whose names were presented "by the democratic general committee.

Messrs. Armatage and Gregory unite in rejecting that list and appointing other persons in their place; they finally unite in naming not only the democratic inspectors, but the republican ■election officers; they unite in depriving Mr. Manning of any voice in the selection of these officers ; and it seems to me that in short they acted in concert and combination all through the proceedings, and I can see no other reasonable construction of their acts but to hold that they are the majority of the board. If they are the -majority of the board, it necessarily follows that the remaining member is the minority member of the board.

This (construction, I think, fully carries out the spirit and intention of the law, and it necessarily results in having election inspectors appointed by those who are in hostility to each other, and who consequently will appoint inspectors of election who will be antagonistic to one another, which is what the law intends and contemplates, and it gives to the words used in the statute their natural, plain, obvious and ordinary signification. People ex rel. Bockes v. Wemple, supra.

The opposite construction will allow members of the same political faith, or those who have entered into a combination with each other, on local or other issues, to appoint the inspectors for both political parties; inspectors who will act in harmony with each other, and with a common purpose and understanding, and thus defeat the spirit of the law.

That this latter construction is a dangerous one, and one by means of which the intent and purpose of the law can be defeated, has an illustration in this case. Not only was the list of officers presented by one of the party organizations ignored, which, although contrary to precedent, the board legally had a right to do, but it also appears that in some election districts of the city the election officers named as democrats in the list presented by Mr. Armatage were in truth and in fact republicans, so that in such election districts all the election officers were of one political faith; to what extent this was carried does not appear from the papers in this case, which are somewhat scanty, owing perhaps to the shortness of the time elapsing between the order to show cause and the time of its return; but whether few or many they afford a demonstration of the evils of the construction contended for by the relator, and the propriety and necessity of the construction we have placed upon this statute to carry into effect its spirit and intent.

It would follow from this that the list of inspectors designated by Mr. Manning was legally designated by him as the minority member of the board.

But it is said that the election officers shall be appointed by the board; and that the Manning list was never appointed by the-’ board, but was simply designated by Mr. Manning. It is true that the board is to make the appointment, but the statute says-that the inspectors of election selected to represent the party of the same political faith as the minority member shall be selected solely by him; and it follows as a matter of course that it is the-duty of the board to appoint as inspectors of election the persons-so selected by the minority member, and that duty can be enforced by mandamus ; and because they failed to perform that duty does not affect the legality of the action of the minority member.

The persons designated by Mr. Manning to serve as inspectors of election having been legally selected by him as the minority member of the board, and it being the duty of the board to appoint them as inspectors of election, it follows that the relator was not entitled to the mandamus prayed for by him, and that the order granting it should be reversed.

Let the order of the special term be reversed, with ten dollars costs and printing and other disbursements.

Mayham, P. J., concurs in result.

Putnam, J. (dissenting).

After a careful consideration of this •case I have reached the conclusion that the order directing a peremptory mandamus to issue was properly granted by the court below, for the reasons stated by Justice Fursman in his opinion. His elaborate review of the questions involved renders it unnecessary to write any other opinion in the case.

The order should be affirmed, with costs and disbursements.

Order of special term reversed, with ten dollars costs and printing and other disbursements.