text:
    CYNTHIA A. TOLMAN, as Administratrix, etc., of JOSIAH H. TOLMAN, Deceased, Respondent, v. THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, Appellant.

      Evidence — credibility of a witness — when it is a question for the jury — rule as to the weight of affirmative and, negative evidence as to the ringing of a bell — absence of positive evidence as to the exercise of care in approaching a crossing— when the exercise of it by the plaintiff is a question for the jury — additional allowance— when the General Term will not interfere with the discretion of the Special Term in granting one.

    This action was brought to recover the damages occasioned by the negligent killing of the plaintiff’s intestate by the defendant. Upcin the trial one Cole, a brabeman in the defendant’s employment, was called as a witness by it, and testified that he did not say to one Ellis that the first thing he saw at the time of the accident “was the. horse just as the engine was about to strike him.” Ellis was then called as a witness and testified that “ Mr. Cole said to me that the first thing he saw was the horse just as the engine was about to strike him.”

      Held, that the court properly submitted the question of the credibility of the witness Cole to the jury; that it was for the jury to pass upon his evidence and determine whether they would believe or disbelieve it, and that its verdict could not be set aside upon the supposition that it was found in disregard of his evidence in whole or in part.
    The rule in respect to affirmative and negative testimony as to whether or not a bell was rung when the train was approaching a crossing considered, and the evidence in this case held to be such as to justify the court in submitting the question to the jury.
    Tiie intestate at about half-past seven p. M., on December 21,1880, was approaching a crossing over the defendant’s tracks with his horse and cutter on his way from Syracuse to his house. Evidence was given tending to show that at a distance of 142 feet from the rails one could, in daylight, see the tracks in the direction from which the train came for a distance of 2750 feet. The night was very dark, misty and foggy, and it was impossible to see far or to hear distant sounds. There was no positive evidence from any witness to show that the deceased ■ cautiously approached the track, looking and listening for an approaching train.

      Held, that the question as to the absence of contributory negligence upon the part of the plaintiff was properly left to the jury.
    The court charged that, while a “traveler is bound to look and listen for an approaching train before undertaking to cross, it is only when it appears from the evidence that he might have seen had he looked, or he might have heard had he listened, that the jury, in the absence of evidence upon the question, is authorized to find that he did not look and listen.”

      Held, no error; if to look or to listen would not apprise the party of the danger, negligence cannot rightfully be presumed from his failure to do either.
    An order granting an extra allowance of costs will not be reversed where it does not recite upon what proofs it was made, and there is nothing to show that the case was not both difficult and extraordinary.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury in a Circuit Court held in Onondaga county, and from an order denying a motion for a new trial on the minutes of fhe justice before whom the action was tried; also from an order granting an extra allowance. The action was brought to recover damages occasioned„by the alleged negligent killing of the plaintiff’s intestate by the defendant.

      L. Marshall, for the appellant.

      T. K. Fuller, for. the respondent.
   Hardin, J.:

No error was committed at the circuit in submitting to the jury the question of the credibility of the witness John Cole.

Tirst. He was called by the defendant, and testified that he was upon the engine at the time of the accident, and he was then working for defendant as a brakeman and had been employed about three years, and was in such employ at the time he gave testimony.

Second. lie testified that he did not say to Ellis that the first thing he saw at the time of the accident was the horse just as the engine was about to strike him.” Ellis was called as a witness and testified that Mr. Cole said to me that the first thing he saw was the horse just as the engine was about to strike him.” Under such circum.stances the court was not at liberty to rule as a matter of law that his evidence was true, nor to predicate a motion for .a nonsuit upon his testimony, nor to tell the jury to give full credence to him as a witness. But it was the duty of the court to allow the jury to pass upon his evidence and determine whether they would believe or ■disbelieve it. Nor are we at liberty to set aside the verdict of the jury upon the supposition that the same was found in disregard of his evidence, in part or in whole. (Elwood v. The West. Union Tel., 45 N. Y., 549; Kavanagh v. Wilson, 70 id., 179; Gildersleeve v. Landon, 73 id., 609.)

A court or jury is not bound to adopt the statements of a witness .simply for the reason that no other witness has denied them, and that the character of the witness is not impeached, the witness ■may be.contradicted by circumstances as well as by statements of ■others contrary to his own, or there may be such a degree of improbability in his statements as to deprive. them of credit, however positively made. (Koehler v. Adler, 78 N. Y., 287.) Whether Cole should be believed in his statements or not, was was properly a question of fact, to be submitted to the jury in the light of all the circumstances disclosed by the evidence. The rulings of the court and the charge to the jury were within the doctrine of the cases to which we have adverted.

The alleged negligence of the defendant consisted in an omis■sion to give the proper signals as the train approached the crossing where the injuries occurred. When this case was here upon a former appeal, we laid down the rule in respect to affirmative and negative testimony, as to whether the bell was rung or not. (Tolman v. Syracuse, B. and N. Y. R. R. Co., 27 Hun, 335.) Upon the trial now before us the rule was observed, and witnesses were called who stated that the bell was not rung. But a passenger on the train says he heard the sharp whistle for down brakes, and that the train immediately began to slack up and slow its speed, and that he knew what the whistle meant, and that he did not hear any other signal until the whistle, after the train left Syracuse, before the accident at the Swamp crossing, and then he added: “ I know I should have heard it had it been a proper signal.” This witness says, prior to that time he had been employed as a fireman on a railroad engine, and had been frequently over this road from Syracuse to Janesville.

Other witnesses were called to speak of the movement of the train and its speed; that it was behind time when it left Syracuse to run four miles to Janesville, and stated what their observations were about the whistle given, and the absence of all other whistles prior to the accident. Defendant’s engineer testified about the occurrence, and said: The first thing I knew I felt a jar’ at the crossing; the next thing I saw was the horses head on the steam chest, on the right side of the pilot.” Several witnesses were called by the defendant to establish that the signals were given upon approaching the crossing. We cannot say that the evidence was so clear and preponderating upon the subject of whether or not the proper signals were given, as to warrant the court in withdrawing the question of fact from the jury, and to rule as a matter of -law that the full duty of defendant was done in regard to giving signals. (Salter v. The Utica and Blaclc River R. R. Co., 59 N. Y., 631; S. C., 88 id., 42; Voak v. Northern Cent. R. R., 75 id., 320 McKeever v. N. Y. C. and H. R. R. R., 88 id., 667.) Probably the question of fact in the case last cited was somewhat like the one in this brunch of the ¡present case. There the judges of the Court of Appeals divided upon the evidence, a majority, however, held that the case was within the rule laid down in Culhane v. N. Y. C. and H. R. R. R. Co. (60 N. Y., 133), and that a nonsuit was properly granted. But we think the evidence adduced in the case in hand was something more than a mere statement that the witnesses did not hear the signals. Some of the witnesses disclosetlieir opportunities for hearing, and as we have seen, Bush says he knows “the proper signals were not given.” We therefore sustain the ruling and charge of the circuit judge in refusing to non-suit for want of proof of negligence of the defendant, and in giving that branch of the case to the jury as a question of fact.

The jury found negligence, and we cannot say that their verdict in that regai d is wholly unsupported by evidence. (Kellogg v. N. Y. C. and H. R. R. R. Co., 79 N. Y., 74.) The charge guarded the jury against mere negative evidence, and accords with the rule laid down by us in this case when here upon the former appeal. (See opinion of Shith, P. J., 27 Hun, 327.)

Third. Apply the rule laid down as to the witness Cole, whose evidence we have said the jury were warranted in disbelieving, and then there is no witness called who gave an account of the conduct of the intestate preceding the accident. There is, therefore, no positive testimony from any witness to the effect that he cautiously approached the crossing, looking and listening for an approaching train, as is the duty of every person who is about to pass over a railroad track with a horse and cutter (Kellogg v. N. Y. C. and E. R. R. R. Co., 79 N. Y., 74.)

The intestate on the 21st of December, 1880, about half-past seven p. m., was approaching the crossing with his horse and cutter, on his journey from Syracuse to his home, and the evidence tends to show that, at a distance of 142 feet from the rail, he could have obtained, in daylight, a view of the track 2,750 feet in the direction from which the train was coming on its approach to the crossing. Many witnesses say it was a very dark night, misty and foggy, and that it was impossible to see by reason of the phenomenal condition of the atmosphere at-the time of the injuries. Witnesses say, that when a light was used to pick up the body of the deceased, that, from the car window, they could see but imperfectly; could see that the men were carrying something, but that what it was could not be determined. One witness says he could “ see no more of the men than up to their waists.” * * * “I could not see whether they bore anything towards the train.” In fact they were carrying the body of the deceased to put it on the baggage car, to carry it to Janesville. While we recall the familiar rule that it must appear by evidence that the intestate was free from contributory negligence, as stated in Cosgrove v. N. Y. C. and H. R. R. Co. (87 N. Y., 91), we are mindful of the qualification of the rule that' oral evidence of a witness is not absolutely necessary to warrant the conclusion that the intestate was free from all contributory negligence. Deductions and inferences may be drawn from facts and circumstances sufficient to answer the requirement of the rule to which allusion has been made. (Reynolds v. N. Y. C. and H. R. R. R. Co., 58 N. Y., 248; Morrison v. The Same, 63 id., 643; Hart v. Mudson River Bridge Co., 80 id., 622; Cosgrove v. N. Y. C. and H. R. R. R. Co., 87 id., 91; Jones v. N. Y. C. amd H. R. R. R. Co., 28 Hun, 366.) ¥e quote from Stackus v. New York Central Railroad Company (79 N. Y., 469), the language of the chief justice, as applicable to the question in this case, as to whether the intestate was guilty of contributory negligence, viz.: “ It depends upon all the circumstances, * * * the situation of the road, the facility for seeing and hearing, the wind and weather, the construction of the evidence and the credibility of witnesses. It' is difficult to conceive of a question of fact more appropriate for the consideration ofr a jury than this. It is a question in respect to which men may differ.” If the night was so dark, foggy and misty that it was not possible to see the lights on the approaching train, if the air was so heavy that the sound of an approaching train could not be heard in time to avoid injury, of what avail was it to look and listen? The facts-and circumstances of this case do not compel an inference that the deceased did not listen and look for an approaching train. The fact of his injury under the circumstances disclosed did not give rise to a presumption of negligence.

It was not an error in the charge to state that while a “ traveler is bound to look and listen for an approaching train before under taking to cross, it is only when it appears from the evidence that he might have seen had he looked, or he might have heard had he listened, that the jury in the absence of evidence upon the question is authorized to find that he did not look and did not listen.” If to look or to listen would not apprise the party of danger, the omission to do either cannot rightfully be the predicate for an imputation of negligence contributory to the injuries. (See Schwier v. N. Y. C. and H. R. R. R. C., 90 N. Y., 564.) Our conclusion is that no error was committed in tbe progress of tbe trial, and tbat we sbonld allow tbe verdict to stand

Section 3253 of the Code of Civil Procedure authorizes an additional allowance of costs in a difficult and extraordinary case where a defense has been interposed.” Under tbat section tbe court allowed three per cent, or $176.85. Tbe order does not recite upon what proofs tbe allowance was made. There is nothing to show tbat tbe case was not both difficult and extraordinary. Tbe usual presumption obtains tbat tbe order is correct unless tbe contrary appears. Tbe case had been beard twice at circuit, and bad been in the General Term, and tbe volume of evidence presented to us on this appeal of 180 pages, furnishes some evidence tbat tbe ease was both difficult and extraordinary. Tbe case differs from Duncan v. DeWitt (7 Hun, 184). Tbe order may have been granted upon proofs more extensive even than we find in tbe appeal book. Tbe section from which we have quoted says the court may also in its discretion award to any party a further sum,” etc.

In Morrison v. Agate (9 Weekly Dig., 286) it was said by a co-ordinate court, viz.: tbe determination of tbe question as to whether an action should be regarded as difficult and extraordinary, within tbe meaning of the Code, involves so many considerations which are addressed to tbe discretion of tbe judge, tbat tbe appellate court rarely interferes.” (See, also, Bryon v. Durrie, 8 Weekly Dig., 57.) Under the circumstances of this case, we think tbe fair presumption is, that tbe allowance was proper and for a proper amount. (Everingham v. Vanderbilt, 12 Hun, 75.) “ Error cannot be presumed to have intervened in tbe course of legal proceedings of this character.” (Opinion Dahiels, J., p. 80.) To reverse tbe order we should be obliged to say that tbe discretion of tbe trial judge was improperly exercised. (Morss v. Hasbrouck, 13 W. Dig., 393, [G. T.]; Burke v. Candee, 63 Barb., 552, followed; Decolmynv. Chamberlain, 48 How., 413.) We are not prepared to demonstrate, upon tbe papers now before us, that tbe trial judge improperly exercised, or abused bis discretion, and we are constrained to approve of tbe moderate allowance made.

Tbe order will therefore be affirmed.

Smith, P. J., and BARKER, J., concurred.

Judgment and order- affirmed.


source: Caselaw Access Project

author: Smith, P. J.: Barker, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. RANSOM HALL, Plaintiff in Error.

      Ch-iminal law — when an owner of personal properly is liable to an indictment for resisting a constable attempting to remove it under an execution against another person.

    An execution, upon a justice’s judgment against Charles Hall, having been issued to one Ayres, a constable, that officer levied upon a quantity of beans in the barn of the plaintiff in error, the father of Charles, 'which the constable had been informed and believed were the property of the debtor, who lived with his father on the premises. As the constable was about to remove the beans from the barn, the plaintiff in error told him that the beans were his and that they did not belong to Charles, and he forbade the constable to levy on or remove them from the premises. The constabl? having attempted to remove them, the plaintiff in error put his hands upon the constable and excluded him from the 'barn, using only so much force as was necessary to prevent him from removing the beans. Upon the trial of the plaintiff in error upon the charge of resisting an officer in the execution of process, his counsel requested the court to charge the jury that, if they should find that the beans levied on were the property of the plaintiff in error, exclusively, and that the constable was about to remove them from his premises and beyond his control, and that the plaintiff in error in resisting such removal used'no other means or force than such as was necessary to prevent it, he was justified in doing as he did, and that the jury should acquit him:

      Seld, that the court properly refused so to charge.
    The court charged the jury that, if they should find that the constable acted in good faith in making the levy upon the beans, believing them to be the property of the execution debtor, and if they should also find that the beans were the property of the plaintiff in error, and that his son, the debtor, had no interest in them; yet the prisoner was not justified in resisting the officer in his attempt to remove them, although such resistance was accompanied by no more force than was necessary to prevent such removal, and that it was their duty to convict him:

      Held, that the charge was proper.

      Quwre, as to whether one owning and in the actual possession of personal property is liable to an indictment for using force to prevent an officer from levying upon such property by virtue of an execution against another person, when the officer acts, not wantonly, carelessly or oppressively, but in good faith, believing the property to be that of the execution debtor. (Smith, P. J., holding that he is liable, and Barker, J., that he is not.)
    Writ of error to tbe Court of Sessions of Orleans county to review a judgment and conviction of tbe plaintiff in error for tbe offense of resisting an officer in tbe execution of process.

      S. E. Eilkins, for the plaintiff in error.

      Isaac S. Signor, district attorney, for the defendants in error.
   Smith, P. J.:

An execution upon a justice’s judgment against Charles Hall having been issued to one Ayers, a constable, that officer levied upon a quantity of beans in the barn of the plaintiff in error, the father of Charles Hall, which the constable had been informed and believed, were the property of the debtor, who lived with his father on the premises. As the constable was about to remove the beans from the barn, the plaintiff in error told him the beans, were his and did not belong to Charles and he bade the constable not to levy on them or remove them from the premises. The constable said he would remove them and he attempted to do so, when the plaintiff in error put his hands upon the officer and excluded him from the bam, using only so much force as was necessary to prevent him from removing the beans. Evidence tending strongly to establish the exclusive ownership and possession of the beans by the plaintiff in error, and that the execution debtor had no interest in them, was given upon the trial, and the jury would have been justified in so finding.

The counsel for the plaintiff in error requested the court to charge the jury that if they should find that the beans levied on were the property of Ransom Hall, exclusively, and that the constable was about to remove them from Ransom Hall’s premises, and beyond his control, and that Ransom Hall in resisting such removal used no other means or force than was necessary to prevent such removal, he was justified, and the jury should acquit him. The court refused such request, and the counsel for the plaintiff in error excepted.

The court charged the jury that if they should find that the constable acted in good faith in making the levy upon the beans, believing them to be the property of the execution debtor, and if they should also find that the beans were the property of Ransom Hall, and that Charles Hall had no interest in them, yet the prisoner was not justified in resisting the officer in his attempt to remove the beans, although such resistance was accompanied with no more force than was necessary to prevent such removal, and that they must convict the prisoner. To which charge the plaintiff in error excepted.

The prisoner was convicted and sentenced to pay a fine of twenty- , five dollars, and to be imprisoned until satisfied, not exceeding twenty-five days.

The exceptions above stated present the only question in the case. The question is whether the owner of personal property is liable to an indictment for using force to prevent an officer from levying' upon such property by virtue of an execution against another person, where the officer acts, not wantonly, carelessly, or oppressively, but in good faith, believing the property to be that of the execution debtor. We have not been able to find an adjudication upon the precise question in this State. It is well settled that the officer is liable as a wrong-doer in a civil action for making such levy (Fonda v. Van Horne, 15 Wend., 631), and it has been held that, there is a distinction in that respect between a levy under an execution and a taking of goods pursuant to a writ of replevin; the officer being directed, in the latter case, to take the particular goods described. (Foster v. Pettibone, 20 Barb., 350.) It was held in The People v. Cooper (13 Wend., 379),• that an indictment lies-against a party who, in the exercise of the right of recaption, to repossess himself of goods taken from him under an attachment against another person, commits a breach of the peace by assaulting the officer who took the goods, if the process under which the seizure was made is regular upon its face, although the magistrate who issued it had not jurisdiction of the subject-matter. Possibly, that case is distinguishable from this, by the circumstance that the officer, when he was assaulted, - had the manual possession of the property when the defendant attempted to regain it. While here, the beans, although a formal levy had been made on thejn, had not been removed, and were yet in the possession and control of the owner.

The question before us has been passed upon in some of the sister States, but the decisions are conflicting. In Commonwealth v. Kennard (8 Pick., 133), it was held that if an officer would take goods belonging to A. and in A.’s possession, upon a writ against B., A. may maintain his possession by force, in the same manner as lie might against any person who is not an officer. But in State v. Dovmer (8 Vt., 424), that doctrine was controverted and its opposite asserted by the Supreme Court of Yermont, in a well reasoned opinion, written by Mr. Justice Redfield. “If,” says the learned judge, “the owner of property may resist an officer in its defense, so may one who believes himself the owner; for it will not do to predicate crime upon so subtle a distinction as an abstract right of property.” He distinguishes the case from that of an illegal arrest of one person upon process against another, in which he admits that an officer attempting to make the arrest may lawfully be resisted, and says “ the case of property is very different. ■ It depends upon criteria which are not the objects of sense.” He also adverts to the consideration that it is the duty of the officer to attach property whenever requested to do so, as creating a distinction between his act and the gratuitous trespass of a stranger, without pretense of process.

Hnder our statute, the proceeding which the officer is authorized to institute, in his discretion, to try the title to the property, in case of an adverse claim, can only be resorted to after levy made (Code of Civil Proc., § 1418), and it is essential to the protection of the officer that he should have the actual possession and control of the property, after his levy, until the adverse claim is disposed, of. Resides, the remedy above referred to is available only to officers levying by virtue of process issued out of courts of record, and does not apply to a constable levying under an execution upon a justice’s judgment.

The doctrine of State v. Downer was re-affirmed by the Supreme Court of Yermont in State v. Miller (12 Vt., 437), Merritt v. Miller (13 id., 416), and State v. Buchanan (17 id., 573). It has been approved and followed by the Supreme Court of New Hampshire (State v. Fifield, 18 N. H., 34; State v. Richardson, 38 id., 208), and the Supreme Court of Ohio (Faris v. The State of Ohio, 3 Ohio St., 159; see,- also, Cokeley v. State (4 Clark [Iowa], 477.) We are referred by the counsel for the plaintiff in error to the case of State v. Johnson (12 Alabama, 840), in which the Massachusetts case above cited was followed. Rut it does not appear that the cases in conflict therewith were brought to the attention of the court. We are referred by the counsel for the plaintiff in error, to an English case,- cited in Wharton’s American Criminal Law (3d ed.), 554, bat we have not had access to it. The case of The People v. Wentworth (4 Scam., 550) is also cited.

The opinions above referred to seem to have exhausted the subject, and it is only necessary for us to say that we concur in the reasoning and conclusion of State v. Downer, and the other concurring cases above cited.

The conviction and judgment should be affirmed.

Barker, J.:

I concur that the conviction and sentence be sustained. It is not stated in the bill of exceptions that, at the time of the levy by the officer, the defendant was in the actual possession of the property; nor does it appear that, at the time the officer made the attempt to remove the same, he had not secured full possession of the property. The defendant gave his consent that the officer might enter upon the premises and levy on any property belonging to Charles Hall, the defendant named in the execution. He had effected a complete levy upon the property and had commenced a removal of the same before the defendant attempted to interfere. The title to the property was in dispute, the constable claiming that it was the property of the defendant named in the precept, who is a son of the defendant, and resided with him on the premises. It is impossible for the court to say, from the facts stated iu the bill of exceptions, that the prisoner was at the time of the levy, in the.actual possession of the property to the exclusion of Charles Hall.

In the request to charge as made, by the defendant, and which was rejected, the court was asked to direct an acquittal of the defendant, if the jury should find that he was the sole and exclusive owner of the property. In the charge as made, the jury were instructed, that if they found the officer acted in good faith, and believed the property to be that of Charles Hall, and they in fact found it was the property of the defendant, then he was not justified in resisting the officer in his attempt to remove the property. In neither of these propositions was the question of the actual possession of the property by the defendant embraced, and each was based upon the fact of ownership; consequently it was not error to reject the first and affirm the second. As to the legal proposition stated in the opinion of Mr. Justice Smith, founded on the cases which are cited therein, that the lawful owner of personal property, in the actual possession of the same, cannot lawfully defend such possession by the use of so much force as is necessary for that purpose, as against an officer who attempts to levy upon and remove the same by virtue of process against another, who has no right or interest in the property, I do not concur. I place my dissent upon the common law rule, as the same is stated and followed in the decisions of the courts of this and other States, which is, as I understand the cases, that the owner of personal property in the actual possession of the same, may defend his possession, using no more force than is necessary, as against an officer who seeks to seize and remove the same, by virtue of legal process in his hands, commanding him, in general terms, to levy upon the property of another named in the writ. I refer in particular to Elder v. Morrison (10 Wend., 128); Commonwealth v. Kennard (8 Pick., 133); People v. Wentworth (4 Scammon [111.], 550); State v. Johnson (12 Ala., 140); Story v. Robinson (6 T. R., 138; Wharton on Crim. Law, § 1290); Buck v. Colbath (3 Wall., 334); Curtis v. Hubbard (4 Hill, 437); Curtis v. Hill (1 id., 336).

Hardin, J., concurred in result.

Conviction and judgment affirmed.


author: Smith, P. J.:

text:
    JAMES J. BELDEN and Others, Appellants, v. THE STATE OF NEW YORK, Respondent.

      Canal contract — construction of it — right of the State to set off an over-payment made under a mistake of fact, against a balance due from it to the same contractor under another contract.

    One Belden entered into a contract 'with the State for the performance of certain work upon the canals. The contract provided, among other things, that all materials excavated should “be deposited so as to form the necessary banks for the canal, and in such other places as the State engineer shall direct, and when the same are carried over two hundred feet parallel with the line of the canal for the purpose of making embankments for the canal, or for the same distances in direct line to form bridge embankments or guard banks (spoil banks not included), the same shall be paid for both as excavation and embankments. No materials embraced under the head of excavation, and paid for as such, will, when deposited in any embankment, be paid for as embankment unless the same has been moved two hundred feet in a line parallel with the canal, except as before specified for bridge embankments, and all embankments made from materials not embraced in the excavation will only be paid for as embankments.” The contract provided that the work should be conducted in such a manner as not to interfere with or disturb the navigation and use of the canal, thereby requiring the bulk of the work to be carried on when the canals-were closed by reason of frost and ice.
    The contractor claimed that, at the time the excavation was made, much of the-earth excavated was frozen and unfit to be placed at that time in the bank; that it was, for that reason, placed in what are known as “spoil banks,” much of it in the prism of the canal, and that, when thawed out, it was removed to the side of the canal and placed in the embankment. For the earth so excavated and used they claimed to be entitled to charge as for embankment as well as for excavation, although it had not been removed 200 feet in a line parallel with the canal, or used for bridge embankments.

      Held, that the claim was properly overruled by the board of audit.
    Three contracts were made by Belden' with the State. On the first he had been overpaid by the sum of $102,G10.80; on the second there was still due and unpaid the sum of $7,605, and on the third the sum of $9,750.60. The payments were made to the contractor by the disbursing agents of the State, out of moneys appropriated by the legislature, upon monthly estimates of the work made by the engineers employed by the State, as provided in the contract. The contract provided a mode for correcting any overpayment made iu consequence of error in the monthly estimates by authorizing the State to retain fifteen per cent of the amount of the work done until the final completion of the work. The work was completed on May 17, 1875. After that date payments were made to the contractor amounting to $81,409, the last of which, amounting to $19,023, was made on June 1,1875. No action of the legislature, taken after these payments, which could be construed as a ratification thereof, was proved.

      Held, that the board of audit properly decided that the overpayment made by the State was-made under a mistake of fact, and that the amount so overpaid might and should be set off against the balances due on the other contracts. (I-Iardin, J., dissenting.)

      People v. Denison (80 N. Y., 656; affirming S. C., 19 Hun, 137), distinguished.
    Appeal from a decision of the late board of audit dismissing the appellants’ claim against the State.

      M. A. Knapp, for the appellants.

      Leslie W. Mussell, attorney-general, James A. Dennison, first deputy attorney-general, and D. Magone, Jr., for the respondent.
   Smith, P. J.:

The claimants established a prima facie right to recover the amounts unpaid for work done and materials furnished under contracts B ” and C ” mentioned in the record book, and they are entitled to judgment for the same unless some defense thereto has been made out. The board of audit found that the amount unpaid on contract “ B ” was $7,491, and on contract “ C,” $9,750.60. In ascertaining the amount unpaid on contract ££B,” the board seem to have adopted the sum shown by the estimate of February, 1875, to have been unpaid on the first day of that month. It appears by uncontradicted evidence, that there was unpaid for work done during that month, and not included in said estimate, the sum of $ 114. That sum should be added to the amount found by the board, making the sum of $7,605 unpaid on contract “ B.” If the claimants are entitled to recover those sums there should be added to them interest from the 1st day of September, 1875.

The board of audit found that the claimants had been overpaid on contract “ A ” in a sum largely exceeding the amounts unpaid on contracts B ” and C,” and -on that ground the entire claim was dismissed. The claimants contend not only that their claims under the last two contracts were improperly denied, but that they were entitled to recover a large sum in addition for work done and materials furnished under contract “ A.”

In respect to the latter contention, it is to be observed that the board found that the several items of work done and materials furnished by the claimants under contract “A,” or in extra work pursuant thereto, amounted, at the prices agreed on therefor in said contract, to only the aggregate sum of $314,960.70, which was less by $102,610.30 than the sum which the claimants admitted they had received from- the State on said contract. If that finding is warranted by the evidence, it defeats the claim to recover under contract “A.”

The principal items embraced in said finding are “ earth ” and £í rock ” excavation, embankment,” vertical wall dry,” and cement,” and hemlock timber.” There are several minor items to which it is not necessary to refer, for the reason that if the finding is sustained as to the larger items above, mentioned, it is sufficient for all the purposes of the defense.

The difference in the amount of earth excavation and also of embankment allowed by the board, and that claimed by the appellants, depends to some extent on the interpretation of the contract. The specifications forming part of the contract provide that “ all materials removed as aforesaid ” (excavated) shall be deposited so as to form the necessary banks for the canal, and in such other places as the State engineer shall direct, and when the same are carried over 200 feet parallel with the line of the canal for the purpose of making embankments for the canal, or for the same distances in direct line to form bridge embankments or guard banks (spoil banks not included), the same shall be paid for both as excavation and embankments. No materials embraced under the head of excavation, and paid for as such, will, when deposited in any embankment, be paid for as embankment unless the same has been moved 200 feet in a line parallel with the canal, except as before specified for bridge embankments, and all embankments made from materials not embraced in the excavation will only be paid for as embankment.”

The appellants claimed for 73,460 cubic yards of embankment,- and the board allowed 10,445f yards only. The board found that of the embankment so claimed all but 10,445f yards was composed of materials which had been embraced under the head of excavations and paid for as such, and that none of it had been moved 200 feet in a line parallel with the canal, and none of it was for biidge embankment. This finding appears to be supported by the evidence. But it is claimed by the appellants that the evidence shows also that at the time when the excavation for the wall was made much of the earth excavated was frozen and unfit to be placed at that time in the bank. It was therefore placed in what is known as “ spoil bank,” much of it in the prism of the canal, and when it thawed out it was removed to the side of the canal and there placed as embankment. These latter circumstances are supposed by the appellants to take the case out of the provisions of the contract above quoted, it being contended that those provisions applied only to the excavated earth, which could be immediately placed as embankment, and did not apply to earth which, as in the present instance, was handled twice. ¥e think the interpretation above suggested cannot be maintained. The language of the specifications, bearing upon the question is clear and hardly admits of construction. If the necessity of putting the earth in spoil banks arose from the fact of its being frozen when excavated, the parties to the contract must be presumed to have foreseen that contingency, as the contract expressly provided that the work should be conducted in such a manner as not to interfere with or disturb the navigation and use of the canal, and consequently the bulk of the work could only be carried on when the canals were closed by reason of frost and ice. To adopt the interpretation contended for by the claimants would be to alter the contract.

Proof was given as to the custom in such a case. It is very doubtful whether custom could affect the contract made by the parties in that regard, but however that may be, the testimony as to the custom was conflicting, and the conclusion of the board, in that particular, cannot be said to 'be so clearly against the weight of evidence, as that it should be disturbed for that reason.

The difference between the findings of the board and the claims of the contractors as to the amount of enbankment, and of earth and rock excavation, and also of wall and timber, is largely accounted for by the different methods adopted by the witnesses for ascertaining such amounts. "Without going particularly into a description of those methods, in respect to which there is a large mass of testimony, it is enough to say that upon reading it with the aid of the very full and helpful briefs of counsel on each side, we are satisfied that the evidence warrants the conclusion of the board as to the amount of the several principal items of work done and materials furnished above referred to, and that a reversal of their findings in those respects, as being clearly against the weight of evidence, would not be justified.

It does not appear that the board rejected any part of the claim on the ground that it was for work or materials not within the contract, or on the ground that in making the contract the State officers exceeded their authority. They allowed the claimants the prices fixed by the contract for all the items of work done and materials furnished which, in their judgment, were established by a preponderance of evidence; and a complete defense to the claim made under contract “A” (and also to that made under the other contracts, if there is no legal obstacle in the way of extending the defense to "those contracts, a point that will be considered presently), consists in the fact that the aggregate sum so found to have been earned by •the claimants under contract “A,” falls short of the payments made to them under said contract in a sum exceeding the amounts unpaid on contracts “ B ” and C.”

The fact that the engineers employed by the State made monthly ■estimates of the work as it progressed, and that the disbursing agents of the State made payments thereon from time to time out of moneys appropriated by the legislature, does not estop the State from asserting the defense above stated. The monthly estimates were provisional and were prepared as a basis upon which to make payments during the progress of the work, subject to a final estimate at its completion. The contract provided a mode of correcting any over-payment made in consequence of error in the monthly estimates, by a stipulation that the State might retain fifteen per ■cent of the amount of work done and materials furnished until the ■completion of the work. The provision that the resident or other ■engineer should inspect the work and determine its amount from time to time was not to stand in the place of a final settlement, and was merely an additional safeguard for the State. (Glacius v. Black, 50 N. Y., 145.)

For these reasons we think that the action of the board of audit in respect to the claim under contract “ A ” should be affirmed.

Is a defense shown to the claims under contracts “ B ” and C,” which is now available to the State ? The board of audit, as has •been said, applied the overpayment found by them under contract “A,” to the extinguishment of the claims under the other contracts. Two facts were found by the board upon which they probably rested such application, namely: first, that the estimates upon which the payments were made by the State, were prepared for the purpose of defrauding the State, which purpose was known to the agents of the contractors; and secondly, that the payments made by the disbursing officers of the State, were made under a mistake ■of facts. We regard the case of The People v. Denison, decided by the General Term in the Third Department (19 Hun, 137), and by the Court of Appeals (80 N. Y., 658), as a conclusive adjudication adverse to the State upon the question of fraud.

It is contended by the counsel for the appellants that the case referred to also concludes the State upon the question of mistake of fact, and is an adjudication that the State cannot recover back from the claimants any sunrthat may have been overpaid them on contract “A.” We do not understand the case to go to that length.

For the purpose of considering the question, we assume that no fraud was practiced, and that the overpayment, if there was one, was the result of mutual mistake. The claimants assert for themselves, that they acted in good faith in presenting the monthly estimates and receiving pay thereon, and if the engineers committed any error in preparing the estimates, it was unintentional on their part.

We do not discover in the reports of the Denison case that the question whether the overpayment was made under such circumstances as that the samé might be recovered back, was set up or considered. It was claimed by the State in that action that a large part of the work done by the claimants and for which they received pay, was outside of the contract, and that the State officers who ordered and consented to such work, had no authority to so enlarge the contract, and that such work was without legal sanction, and for that reason the money paid therefor should be restored to the State. It appears by the report of the referees before whom that case was tried, that of the amount held by them to be due to the State, and for which judgment was rendered, the principal part was for sums of money paid by the State for work, labor and materials which the referees held was not embraced within the contract. The Supreme Court reversed the judgment, giving as one •of its reasons therefor,, that as the State had the benefit of the work and labor bestowed upon the canal and retained the title to the material, it could not in justice recall the payment made for the same without allowing for its actual value. In the report of the case in the Court of Appeals, the text of the opinion is not given, but three propositions are stated to have been passed upon by the court. The only one material to the question under consideration is tbe following, to wit: That there was a ratification by the legislature of the unauthorized payments. By the term “unauthorized payments ” we understand the court referred to payments made by •the State officers for work not embraced in the contracts, and in ■ ordering which, or consenting to the same, the State officers exceeded their authority. The questions whether payments of that nature could be recovered back, and whether the action of the legislature was a ratification of such payments, were in the case. But the question whether the legislature had ratified an overpayment for work done and materials furnished, under a mistake as to the amount of such work and materials, we do not understand was contested in the case, or was passed upon by either of the tribunals in which the case was litigated.

It appears by the appeal book before us that the work under contract A” was completed 17th May, 1875. After that day payments were made to the claimants under that contract, amounting to $81,409, the last of which, amounting to $19,023, was made on the 1st day of June, 1875. We find no evidence in the appeal book or in the statutes .of the State, of any legislative action, after such payments, which can be construed as a ratification of the same. The last of those payments exceeds in amount the principal sums due to the claimants on contracts B ” and “ G.” Unless there has been legislative sanction and ratification as to the sums overpaid, they constitute a just and legal set-off to the claims as to which the appellants established a prima facie right to recover, and as they exceed such claims in amount, they are a full defense thereto.

The decision of the board of audit should be affirmed, with costs.

Barker, J., concurred.

Hardin, J., dissents from so much of the opinion as holds that the claimants are not entitled to recover the amounts unpaid on contracts B and C, he being of the opinion that judgment should be ordered in favor of the claimants for those amounts.

Affirmed, with costs.


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    JAMES F. CONVERSE, Respondent, v. CELESTINE E. COOK, as Executrix, etc., Appellant.

      Evidence — when the holder of a note does not derive his title or interest thereto from the person who delivers it-to him— Code of Civil Procedure, see. 829 — An accommodation indorser cannot require the holder to collect the note from the maker.

    This action was brought upon a promissory note indorsed by the defendant’s testator for the accommodation of the maker, one Littlefield, who delivered it to the plaintiff for money loaned. Upon the trial Littlefield was called by the plaintiff and allowed to testify as to admissions of the deceased, which tended to show that he had been properly charged as an indorser of the note. The defendant’s counsel objected to the testimony as inadmissible, under section 829 of the Code of Civil Procedure, on the ground that the plaintiff derived his title and interest to the note from the witness, and that the witness was interested in the event of the action.

      Held, that the objections were properly overruled.
    An accommodation indorser is not discharged by the failure of the holder to take steps to enforce payment of the note from the maker, after he has been requested so to do. The indorser is not a surety, in such a sense, as that he can avail himself of this defense.
    Appeal from a judgment, entered on a verdict rendered at the Jefferson Circuit, and from an order denying the defendant’s motion for a new trial and allowing the plaintiff costs against the defendant as executrix and against the estate of her testator.

      F. N. Fitch, for the appellant.

      Lem H. Brown, for the respondent.
   Smith, P. J.:

The action is upon a promissory note made by Harvey D. Little field, payable to the order of, and indorsed by, the defendant’s testator, Malcomb G-. Cook. The note was indorsed by Cook for the accommodation of Littlefield, and the latter delivered it to the plaintiff for money loaned.

The question whether the indorser was duly served with notice of demand and non-payment, was litigated at the trial, and was decided by the jury adversely to the defendant, upon evidence which, although conflicting, was sufficient to warrant the verdict. The principal witness for the plaintiff upon the point above stated was the maker Littlefield, who testified to certain admissions made to him by the testator, and whose testimony in that respect was received against the defendant’s objection that it was incompetent under section 829 of the Code of Civil Procedure. The grounds of the objection, as stated at the trial, were that the plaintiff derived his title and interest in the note’ in suit from the witness, and that the witness was interested in the event of the action.

We do not think it can be said that the plaintiff derived title to tlie note from Littlefield, within the meaning of section 829. The statute has reference to a transfer of title or interest, by assignment or otherwise. It is true the note in suit was delivered by Littlefield to the plaintiff, but until such delivery it had no inception, and was of no value as a legal instrument. As Cook was a mere accommodation indorser, Littlefield could not have enforced it against him. The appellant’s counsel suggested that if the note had been stolen from- Littlefield before delivery, the offense would have been larceny; but he cited no authority. If that position were correct, it would not be decisive of the present question, for it may be that, the felonious taking of an instrument, negotiable in form, which lacks only delivery to give it validity and legal value, may constitute larceny, although, while in the hands of the party who signed it, it lacks validity. Thus in The People v. Wiley (3 Hill, 194), it was held by the Supreme Court, in 1842, that bank bills,‘completed in form, but not issued, are the property of the bank; and may be so treated in criminal proceedings for receiving them with knowledge of their having been stolen. Put in the later case of The People v. Loomis (4 Den., 380), the same court held that stealing a receipt from the hands of the party whose act it is, it never having taken effect by delivery, it is not larceny. Beardsley, J., speaking for the court said: “No writing which is fictitious, whatever may be its formj or which, although genuine in signature, has not been made effective by being issued or delivered as a valid paper, can be the subject of larceny under our law.” (P. 384.) The two cases may be reconciled by the fact that in one the instrument was of such a nature that it would pass by delivery from hand to hand, and in the other it was not.- But however that may be, and whether or not the note in Littlefield’s hands was property, within the meaning of the statute against larceny (2 R. S., 619, § 66), which points we.do not intend to decide, it seems clear to ns that the act of delivery of a promissory note by the maker to the holder, creating the relation of debtor and creditor between them, involves no such succession of title or interest as is contemplated by section 829. The appellant’s counsel cites the case of Richardson v. Warner (13 Hun, 13). That case is distinguishable from this by the fact that there the witness Ayer was the person “ from or through ” whom the plaintiff derived title, the note having been a valid obligation in his hands against the maker. True, it was made payable to his order and for his accommodation, but it had its inception when it was delivered to him by the maker, and an indorsement by him without recourse would have passed the title.

Littlefield, although not a party to the suit, was interested in the event, within the decision of the Court of Appeals in Church v. Howard (79 N. Y. 415). His interest was to protect his indorser and so prevent any ultimate claim against himself. But he was examined, not in his u own behalf or interest,” but to establish the liability of the indorser, and such was the effect of his testimony. For that reason his testimony is not within the letter or the spirit of section 829. (Allis v. Stafford, 14 Hun, 418 ; Ely v. Clute, 19 id., 35; Hill v. Alvord, Id., 77; Hill v. Hotchkin, 23 id., 414; Smith v. Meaghan, 28 id., 423; Brown v. Brown, 29 id., 498; Carpenter v. Soule, 88 N. Y., 251.)

The appellant complains that she was not permitted to prove the defense set up in her answer that her testator, if liable as indorser, was discharged by the neglect of the plaintiff to collect the note of Littlefield as demanded by Cook, when the maker was -solvent, he having since become insolvent. On a former appeal in this case, we held that an indorser, although an accommodation indorser, is not a surety in such a sense as that he can avail himself of the defense above stated. That he is bound by his contract, which in this case had become absolute, to pay on the default of the maker, and cannot require the holder to sue the maker. (Converse v. Cook, 25 Hun, 44.) We adhere to that ruling. The decision of the judge at Special Term upon the question of costs is warranted by the evidence presented to him in the motion papers, and we see no reason to interfere with the exercise of his discretion on that subject.

Tbe judgment and order should be affirmed, with costs of the appeal against the appellant as executrix, and the estate of her testator.

Hardin and Barker, JJ., concurred.

So ordered.


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    FRANCES D. WOODRUFF, Respondent, v. ELIZABETH YOUNG, as Executrix, etc., of JAMES YOUNG, Deceased, Appellant.

      Surrogate —ju/risdietion over executors — he cannot compel them to account for property held as the agents for a legatee.

    Upon the hearing of an applicaton to compel executors to account, in a Surrogate’s Court, in respect to certain specific securities, it appeared that, prior thereto, a settlement had been made between the legatee seeking to compel the accounting, and the executors, by which the said securities were transferred to the the said legatee as a part of her share in the estate.

      Held, that, after such settlement, the securities were held by the executors as agents and trustees for the legatee, and not as executors, and that the surrogate had no power to compel them to account for their actions in regard to them.

      Bonfanti v. Beguerre (3 Bradf., 431) distinguished.
    Appeal from so much of an order made by the surrogate of the ' county of Livingston as requires the defendant, to account in respect to certain securities, known as the Gibbs and Lake mortgages.

      D. W. Noyes, attorney for the appellant.

      8. Hubbard, of counsel.

      James Wood, for the respondent.
   Smith, P. J.:

The order of the surrogate evidently assumes the validity and binding force of the alleged settlement made between the parties to this appeal in 1868, wherein the Gibbs and Lake mortgages were transferred by the executrix to Mrs. Woodruff towards her share of the estate, as then ascertained and settled, and the remainder was paid to her in money. Upon no other assumption has Mrs. Wood-ruff any interest in those specific securities, her right, independently of that settlement, being simply to share with the other legatees in the entire estate, of which those securities were a part. But in respect to the mortgages named, the defendant, if liable at all, is liable not as executrix, but as the agent and trustee of the plaintiff. The surrogate has not jurisdiction to call the defendant to account as such agent and trustee. The remark made in the case of Bonfanti v. Deguerre (3 Bradf., 131), cited by the respondent’s counsel, that the court will not regard the discharge of an executor out of court, is inapplicable to the present case, inasmuch as the settlement between the executor and the legatee is here assumed to be valid, and upon that ground alone is the defendant held liable to account for the particular securities referred to. The liability, if any exists in respect to those securities or their proceeds, can only be enforced in a court of general jurisdiction.

The order appealed from should be reversed, with ten dollars ■costs and disbursements.

Hardin and Barrer, JJ., concurred

So ordered.


author: Smith, P. J. :

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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALEXANDER M. MANN, Responded, v. CHRISTOPHER Q. PETERSON and Others, Assessors of the Town of Covert, Appellants.

      Taxation — right of a minister to exemption from — 1 B. 8., 388, secs. 4, 5 — When assessors should, not he cha/rged with the costs of a proceeding to remew their action — 1880, chap. 269.
    The petitioner claimed to he entitled to the exemption of $1,500 given by the statute to ministers of the gospel. It appeared that, at the time of his application, he was, and since 1830 had been, a minister of the Reformed Church in America, in good standing; that by reason of old age and the loss of his sight he had for the last fifteen years withdrawn from the active duties of his profession, although he had during all that period performed its functions occasionally as opportunities presented themselves. He was engaged in no secular occupation.
    Seld, that he was entitled to the exemption.
    That as the value of the real estate, for which alone he was assessed, exceeded the sum of $1,500, he was entitled, under section 5, 1 Revised Statutes, 388, to have the sum of $1,500 deducted from its assessed value, although the said real estate was not then occupied by him.
    That as the assessors acted in good faith in refusing to allow the exemption, and not with gross negligence or with malice, they should not be charged with the costs of the proceedings instituted by the relator under chapter 269 of 1880.

    Appeal from an order made a,t a Special Term, on the return of a certiorari, to review an assessment made by the appellants against the petitoners.

      F. L. Manning, for the appellants.

      W. V. Brvyer, for the respondents.
   Smith, P. J. :

The petitioner claimed before the assessors the exemption of $1,500 given by the statute to a minister of the gospel, and they refused it. Thereupon he sued out a writ of certiorari under the provisions of chapter 269 of the Laws of 1880, andón its return the Special Term ordered a reference to take testimony as to whether the petitioner was a minister of the gospel, and as to the amimrn ■with which the assessment was made, and to report the testimony to the court with the opinion of the referee. . The referee reported the testimony taken by him, with his opinion that the petitioner was a minister of the gospel at the time of the assessment and was. entitled to the exemption claimed by him, andfthat the respondents in refusing to allow the exemption, acted in good faith and not with gross negligence or with malice. The Special Term ordered that the assessment be corrected by reducing it $1,500, and that the petitioner recover of the .defendants costs of the proceedings, to be taxed by the clerk. Prom that order the defendants appeal.

' The evidence shows, without dispute, that the petitioner was a minister of the “ Reformed Church in America,” in good standing, at the time of the assessment, and had been such since the year 1830; but, by reason of old age, and accompanying infirmities, including a growing impairment of vision that had resulted in total blindness, he had for fifteen years withdrawn from the active duties of his profession, but during all that period had performed its functions occasionally as opportunity offered. ■ He was not engaged in any secular occupation. Being a minister, and engaged in no» other calling, he was entitled to the exemption, notwithstanding he was disqualified for active duty by age and infirmity.

The appellants contend that the petitioner was not entitled to exemption in respect to his real estate, for the reason that it does not appear to have been occupied by him. The contention is based on 1 Revised Statutes, 388 (§ 4, sub. 8). But that provision applies only to a case where the real and personal estate of the minister, etc., do not exceed the value of $1,500. In this case the real estate, for which alone the petitioner is assessed, is of the value of $4,800, and the case is governed by section 5 of the statute above cited, which provides that, “ if the real and personal estate, or either of them, of any minister or priest, exceed the value of $1,500, that sum shall be deducted from the valuation of his property, and the residue shall be liable to taxation.” It was not necessary for the petitioner to show that he occupied his real estate.

Section 6 of the act under which this proceeding was had, provides that “ costs shall not be allowed against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith, or with malice.” Under that provision public officers, acting within their jurisdiction, ought not to be charged with costs, unless their dereliction is clear. So long as they are endeavoring honestly, and with reasonable care and diligence, to discharge their duties, they ought not to be visited with costs for a mere error of judgment, however plain that error may be. We incline to hold with the referee as to the animus of the defendants. The case of The People ex rel. Raplee v. Reddy (43 Barb., 539), cited for the respondents, hardly sustains the rulings of the Special Term. Although it was held there that the assessors were bound to follow the affidavit of the person assessed as to the value of his property, and that they erred in not doing so; it was also held that they acted judicially. And in The People ex rel. Thurman v. Ryan (88 N. Y., 142), also cited, which was a proceeding under the act of 1880, although the assessors were held to have committed a plain error in rejecting a certain promissory note produced by the person assessed as an item of his indebtedness, it does not appear that they were charged with costs at any stage of the proceedings, and there is no suggestion that they were deemed to have acted in bad faith.

We think that part of the order which charges the appellants with costs should be reversed, and the rest of the order affirmed, without costs of this appeal to either party.

Harden and Barrer, JJ., concurred.

So ordered.


text:
    CHAUNCEY S. KIBBE, Respondent, v. SIMEON N. WETMORE, Appellant.

      Motion to vacate an attachment — power of the court to a/mend the wa/rrant — limitation upon the right of the plaintiff to oppose the motion by new proof— waiver of objection to the new proof offered — Code of Oivil Procedure, sees. 683, 723 — attachment will issue though fraudulent transfer of property made in another State.

    Upon the hearing of a motion to vacate a warrant of attachment, issued upon the sole ground of the non-residence of the defendant, the latter presented affidavits showing that he was a resident of the State. The plaintiff then read affidavits tending to show, among other things, that prior to the time of issuing the warrant the defendant had disposed of his property, with intent to defraud his creditors, and had kept himself concealed with the like intent, and with the intent to avoid the service of process. The court made an order allowing the attachment to he amended, by inserting therein as grounds for its issue the said fraudulent acts, upon payment of costs, and denied the motion to vacate, without prejudice to a renewal thereof.

      Meld, that the power of amendment conferred upon the court, hy section 723 of the Code of Civil Procedure, was broad enough to cover this case, and that the restriction upon the right of the plaintiff to oppose a motion to vacate by new proof, imposed by section 683 thereof, related not to the power of the court to allow amendments, but only to the practice to be pursued upon a motion to vacate.
    That although the defendant might, under the provision of the said section 683, have objected to the reading of so much of the plaintiff’s affidavits as tended to show grounds for sustaining the warrant, other than that stated therein, yet by his failure so to do the objection was waived, and could not thereafter he raised on appeal.
    The affidavits tended to show that the fraudulent disposition of property was made in Pennsylvania, and not in this State.

      Meld, that this did not deprive the court of the power to grant an attachment; that it was immaterial where the fraudulent disposition took place so long as the court in this State had jurisdiction of the parties and the action.
    Appeal from an order of the Erie Special Term, allowing an amendment of tbe warrant of attachment issued herein and refusing to vacate the same.

      Ansley & Davie, for the appellant.

      Pmdar db Inman, for the respondent.
   Smith, P. J.:

The warrant of attachment was issued upon the ground that the defendant was a non-resident of the State, and that ground only was stated in the attachment. The defendant moved at Special Term to vacate the attachment on affidavits tending to show that he was a resident of the State. The plaintiff read opposing affidavits tending to show, among other things, that at the time of issuing the said warrant and previously thereto, the defendant had disposed of his property with intent to defraud his creditors, and had kept himself concealed with like intent and with intent to avoid service of process. Thereupon, on motion of the plaintiff, the court made an order allowing the attachment to be amended by inserting therein the latter grounds above stated, on payment of defendant’s costs, and denying the motion to vacate, without prejudice to a renewal thereof.

Section 683 of the Code of Criminal Procedure provides that a motion to vacate an attachment founded upon proof, by affidavit, upon the part of the defendant, may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment recited in the warrant, “and'no other, unless ” etc. The remainder of the section is not material to the question here presented. The contention of the appellant is that the section referred to deprives the court of the power to allow the amendment. The power of amendment is given by section 723, which is • broad enough to cover the case. Section 683 does not relate to the power of amendment, but its provisions relate to the practice to be pursued upon a motion to vacate an attachment. It was doubtless competent for the defendant to object to the reading of so much of the plaintiff’s affidavits in opposition to his motion, as tended to establish grounds other than that specified in the attachment. But the appeal book does not show that any such objection was made, and therefore the defendant is to be regarded as having consented that the affidavits in question be received and fully considéred by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should therefore be reversed.

There can be no doubt that the court, or the judge holding it, had power to grant a fresh attachment on the affidavits, ex parte. As between the parties, that was the only effect of the amendment, the order being without prejudice to a new motion- to vacate the attachment. There being no intervening lienors, so far as the case shows, the granting of the amendment was in furtherance of justice, provided the affidavits were sufficient to warrant the issuing of an attachment, upon the grounds covered by the amendment.

It is urged by the appellant that as the fraudulent disposition of property, shown by the affidavits, occurred in Pennsylvania, and not in this State, the attachment cannot be sustained on that ground. It is immaterial where the alleged fraudulent disposition of property took place; if the courts of this State have jurisdiction of the action and the parties, the plaintiff is entitled to his remedy against the defendant’s property within this State.

A question is made as to the sufficiency of the affidavits in respect to the fraudulent concealment of the defendant. We think there is enough in the affidavits on that point, uncontradicted and unexplained, to justify the order of the Special Term.

The order should be affirmed with ten dollars costs of appeal and disbursements. And the costs hereby allowed may be set off'against those required to be paid to the defendant as a condition of the order appealed from.

Hardin and Barker, JJ., concurred.

So ordered.


text:
    THE UTICA WATER-WORKS COMPANY, Respondent, v. THE CITY OF UTICA, Appellant.

      Constitution, cert. 3, sec. IS — r when a local act embraces but one subject — 1867, chap. 393, is constitutional— contract for supplying the city of Utica with water — ■ construction of it — 1863, chap. 18, sec. 417, sub. 3; sea. 69 — Code of Civil Procedure, sec. 3345 — not applicable to costs on appeal — when an action and not a mandamus is the proper remedy of a creditor of a municipal eoiporation.

    Chapter 393 of 1867 is entitled, “An act to authorize the Utica Water-Works Company to increase its capital stock, and to contract with the common council of the city of Utica for a 'supply of water in said city, for the extinguishment of fires.” The first section of the act authorized the common council and the company to make a contract, and to fix and agree upon the sum to he paid annually for a supply of water, for the extinguishment of fires-in said city. The second section of the act authorized the company to increase its capital stock, which had been fixed at $100,000 by the act incorporating it, (1848, chap. 154), to a sum not exceeding $200,000.

      Held, That the act embraced but one subject, to wit, the giving of authority to-the two corporate bodies therein named to enter into a contract for the purpose therein specified, and that this subject was expressed in the title as-required by section 16 of article 3 of the Constitution; that the power to-increase the capital stock of the company was given simply to enable it to raise such sums of money as might be necessary to enable it to fulfil its-contract, and was a mere incident to the main subject.
    By the terms of the contract, which was made on May 19, 1868, the obligation of the company to perform it was made dependent upon its ability, on or before November fifteenth following, to raise by a sale of new stock, or otherwise, such a sum of money as would enable it to perform the contract.

      Held, that the power to insert such a condition was impliedly given by the provision of the act authorizing the company to increase its capital slock.
    That even if' the insertion of this condition were unauthorized, the contract was-not thereby invalidated, as it had been performed, and the contract thereafter recognized as binding by both parties.
    The contract provided that the city should pay the sum of $10,000 per annum for the supplying of water to a portion of the city shown on a map referred to, and one-half of the taxes paid by the company in excess of $1,000. That if the city should direct an extension of the pipes beyond the territory specified, it should pay, “in'addition to the sum herein specified seven per cent upon the cost of said extension or new work.” The city was also to furnish all hydrants which it might require for use in extinguishing fires, and pay for putting them in.

      Held, that as the contract furnished a mode of computation by which the sum to be paid annually by the city could be determined, the price was fixed and agreed upon as required by the act.
    That the provisions as to the supplying of the hydrants by the city was a proper one, especially as the common council was authorized by the charter (1862, chap. 18, § 47, sub. 3) to provide necessary apparatus and means for the prevention and extinguishment of fires.
    That the contract did not violate the provisions of the sixty-ninth section of the charter prohibiting the common council from contracting a debt which should not be payable within the year in which it was contracted.
    That the provision providing for the payment of one-half of the taxes paid by the company, in excess of $1,000, was not a remission of taxes but merely served to partially determine the price to be paid by the city for the water.
    That the seven per cent upon the cost of such additional pipes as might be laid, in pursuance of the direction of the common council, was to be paid annually and not once for all.
    That although the contract furnished a rule by which the amount of compensation could be ascertained, yet as proof must be taken to ascertain tbe amount of taxes paid, and other data to which the rule was to be applied, the plaintiff's remedy was by action and not by mandamus.

    Section 8245 of the Code of Civil Procedure providing that costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands judgment for a sum of money only, unless the claim has before the commencement of the action been presented for payment to the chief fiscal officer of the corporation, does not apply to the costs of an appeal.
    Appeal from a judgment rendered upon the decision of a justice of this court, after a trial by him at the Oneida Circuit, without a >7-

      8. J. Barrows and 0. D. Adams, for the appellant.

      Beardsley & Beardsley and F. Kernan, for the respondent.
   Smith, P. J.:

This action was brought to recover certain sums of money claimed to be due upon a contract alleged to have been executed between the parties, whereby the plaintiff agreed to furnish water from its works to the defendant for a compensation in money, to be paid therefor as specified in the contract. The contract purported to have been made in pursuance of chapter 393 of the Laws of 1861, and the first position taken by the appellant’s counsel is that the contract is void for the reason that the act referred to violates the provision of section 16 of the third article of the Constitution of this State, that no private or local bill shall embrace more than one subject, and that shall be expressed in its title. The title of the act is “An act to authorize the Utica Water-Works Company to increase its capital' stock and to contract with the common council of the city of Utica for a supply of water in said city for the extinguishment of fires.” The first section of the act authorizes the making of such contract, and the second section provides that the company may increase its capital stock to a sum not exceeding $200,000. By the act under which it was incorporated (Laws 1848, chap. 154), its capital was limited to $100,000. We think that the act dealt with but one main subject, to wit, the giving of authority to the two corporate bodies therein named to enter into a contract for the purpose specified in the title, and that the power given to the water-works company to increase its capital stock, was simply a mode provided to enable it to raise the money that it might need to perform the contract that it might enter into with the city for the purpose aforesaid. And such was found to be the object of the provision by the trial judge. As that-was a mere incident to the main subject, the act embraced but one subject within the meaning of the constitutional provision referred to, and that was expressed in its title. It has been held frequently that where the title of a local or private act expresses a general purpose or object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to its title. (The People ex rel. City of Rochester v. Briggs, 50 N. Y., 553, and cases there cited by Church, Ch. J., pp. 563 to 565.)

Next it is contended that the contract is not authorized by the provisions of the act, and is ultra vires. The argument under this head is, that the act only authorized an unconditional contract on the part of the company to supply water for the extinguishment of fires, for a fixed annual sum to be determined by the contract itself, and that inasmuch as the agreement of the company to furnish water is conditioned upon its ability to raise the money by a day named to make the improvement; the city is required to furnish hydrants in order to use the water; and the price to be paid by the city is not fixed, but is fluctuating; the contract is unauthorized.

The contract was made on the 19th of May, 1868. By its terms the obligation of the company to perform was made dependent upon its ability, on or before the fifteenth day of November thereafter, by a sale of new stock, or otherwise, to raise sufficient money to complete the works mentioned in the contract. That provision, instead of being unauthorized by the act, was impliedly warranted by the power given to the company to increase its stock for the obvious purpose of enabling it to perform its contract. And as the condition was in fact performed by the day named, and the contract was thereafter recognized as binding and was acted under by both parties, the present attitude of the parties towards each other is the same, as if the condition in question had not been inserted in the contract.

The provision that the city was to furnish the hydrants which it might require for use in extinguishing fires, and pay for putting them in, was not a departure from the pirrpose of the act. It was proper that the city should furnish hydrants, in order to have such ■as would fit and work properly with their -hose and fire apparatus. By the charter of the city the council have general power to provide necessary “apparatus and means” for the prevention and extinguishment of fires. (Laws 1862, chap.' 18, § 41, sub. 3.)

The provisions of the contract in respect to compensation were, that for furnishing water sufficient for the then settled part of the ■city shown on a map referred to in the contract, the company was to have $10,000 per annum, and one-lialf of its taxes paid in excess -of $1,000 dollars, or if the works for supplying that amount of wafer should cost less than $125,000, the charge was to be seven per cent on the cost, in place of $10,000 per annum. And if the -city should want a greater capacity for water, and should order an •extension of pipes beyond the territory shown on the map, it was to pay seven per cent on the cost of such additional works. These provisions are explained by the fact that at the time of the passage •of the law and the making of the contract, the water company had thirteen miles of water pipe laid in thickly settled streets of the ■city, and the built up territory of the city had so extended that in the judgment of the council ten miles more of pipes were then required for the protection of the city against fires. There was also a large area of territory within the city limits laid out into lots and ■streets, but not then settled or built up, and the contract was so ■drawn as to provide immediately for the settled part of the city which then needed protection, and also to provide for a future ■extension of pipes when it should be needed. The arrangement was a beneficial one for the city and was within the power conferred ■by the act. 'The contract furnished a mode of computation by which the sum to be paid annually by the city could be ascertained. Id cert-wm est, quod cerium reddi fotest.

It is insisted by the appellant’s counsel that the contract, violates ■section 69 of the charter of the city of Utica, which provides that the council shall contract no debt on the part of the city, excepting as therein otherwise provided, which shall not be payable within the fiscal year in which it is contracted, and which cannot be discharged from the income of such year. The position is not tenable. Under the contact the compensation for each year’s service of the company in furnishing water is to be paid for in that year. It is true tbe obligation created by tbe contract is continuing— that is, the city will be obliged to pay annually for water furnished by the company so long as the company continues to furnish it and the city uses it, but the liability will not ripen into a debt, except from year to year, and each year’s indebtedness will be only for the water furnished in that year. Besides, the act authorizing the city to contract being in pari materia with the ■charter, the two are to be read together, and the debt created by the contract, if obnoxious to the general provisions of section 69, is saved by the exceptions therein expressed.

The appellant’s counsel contends that the city has no power to remit taxes to any person. The effect of the contract is not to relieve the company from the payment of taxes, in whole or in part at the expense of other taxpayers, but it is to adopt the amount of •taxes paid by the company as a partial measure of compensation for the water supplied by it. It is an agreement by the city to pay to the company annually a sum equal to one-half the taxes paid by it ■over $1,000, in addition to the sum specified in the contract. It is not a remission of taxes, but simply a resort to the amount of taxea as a measure of compensation.

The appellant’s counsel contends that the coippany is not entitled to seven per cent annually upon the cost of pipes extended beyond the territory designated on the map, but that one payment of seven per cent suffices. The contract on that subject is: “ If said city shall determine to have said water pipes extended on any street ■beyond the point designated on said map, the said company agree to extend the same to such point as may be designated, the city •agreeing to pay, in addition to the sum herein specified, seven per cent upon the.cost of said extension or new work.” The construction contended for cannot be maintained. The seven per cent is in-.addition to a sum specified in the contract, which is to be paid .annually; in other words, the annual payment is to be increased by the addition of the seven per cent. It would be unreasonable to hold that the parties intended by the language employed that the extension was to be compensated for by the payment of only seven per cent of its cost. The parties have practically construed the -contract to mean seven per cent annually, the city having paid seven per cent upon the cost of the extension every year since its completion in 1868 till 1882.

The point is made that 'the plaintiff’s remedy is by mandamus, and not by action. We think an action is the proper remedy. Although the contract has furnished a rule by which the amount of compensation can be ascertained, yet the taking of proof is necessary to establish the amount of taxes paid by the plaintiff and other data to which the rule is to be applied, and for that purpose an action is the appropriate remedy. If, after the amount is settled by judgment, no property of the defendant can be found liable to execution, it may be that the plaintiff can resort to a mandamus to compel the raising of money by tax to satisfy the judgment. But those considerations do not stand in the way of the present remedy by action.

The trial judge having found that the claim upon which the action is founded was not, before the commencement of the action, presented for payment to the chief fiscal officer of the city, costs were refused to the plaintiff, pursuant to section 3245 of the Code. We do not understand that section to apply to the costs of an appeal, and we think the respondent is entitled to costs under subdivision 4 of section 3251.

The judgment is affirmed.

IlARDiN and BARKER, JJ., concurred.

J udgment affirmed.


author: Smith. P. J.:

text:
    JAMES LONGPREY and Another, Respondents, v. ARTHUR G. YATES, Appellant.
    Complaint— when the same transaction or instrument may he set out in more than one count— Code of Civil Procedure, secs, 481, sub. 2.
    The plain! iff, in the first count of his complaint, alleged that he did certain work for the defendant, and expended in so doing the sum of seven dollars, and that in consideration thereof the defendant promised to pay the sum of $2,568.35 for the said work, and repay the sum so expended. The second count alleged that he did work for the defendant, that the latter promised to pay the value thereof, and that it was worth the sum of $2,563.35. The work alleged in each count was the same. Upon a motion to compel the plaintiff to elect between the first and second count and to strike out the other, the plaintiff read affidavits showing that the contract, in pursuance of which the work was done, was made partly with the defendant, personally, and partly with a third person, who was claimed to be the defendant’s agent.

      Meld, that the motion was properly denied.

      Bvrdseye v. Smith (32 Barb., 217), and Velie v. The Newark Gity Insurance Company (65 How., 1), followed.
    Appeal from an order made at a Special Term denying a motion to compel the plaintiffs to elect between the first and second counts of their complaint, and to strike out, etc.

      Shepard <& Put/nam, for the appellants.

      Hopkins c& White, for the respondents.
   Smith. P. J.:

The first count alleges that the plaintiffs did certain work for the defendant, and expended the sum of seven dollars in doing the same; and that in consideration thereof the defendant promised to pay the sum of $2,563.35 for said work, and to repay the sum so expended. The second count alleges that the plaintiff’s did work for the defendant, for which he promised to pay the value thereof, and that it was worth the sum of $2,563.35.

It being conceded that the work alleged in each count is the same, the defendant contends that the pleading violates the injunction of the Code against “unnecessary repetition.” "We think otherwise. Each count states a separate and complete cause of action, although arising out of one transaction. The first count is upon an agreed price, and the second upon a quantum meruit. The current Code allows a statement of each cause of action. (Sec. 481, sub. 2.) "Whether the change of verbiage from that of the old Code (§ 142, sub. 2) was designed to change the rule, it is not necessary to inquire. "Under the old Code it was held that more than one count upon the same insti’ument or transaction was not necessarily prohibited. (Birdseye v. Smith, 32 Barb., 217.) That decision was made by the General Term of this court in the fifth district, in 1860. The action was brought by the receiver of an insolvent corporation upon a promissory note. One count alleged that the note was executed to the company as part of its capital stock; a second count alleged that it was given for premium on a policy of insurance and an agreement to contribute ratably to the losses and expenses of tbe company. The court refused to compel the plaintiff to elect between the two counts. We are not aware that the decision in that case has been overruled or questioned, although it is in conflict with some earlier Special Term cases. The doctrine of that case has been recently reasserted in the case of Velie v. The Newark City Insurance Company (65 How. Pr. R., 1).

The affidavit read by the plaintiffs herein, in opposition to the motion, states that the contract upon which they claim' the work was done, was made in part with the defendant personally, and partly with a third person who, they claim, was the defendant’s agent. Should the plaintiffs fail to prove the authority of the agent at the trial, they would be defeated as to a part of their claim, at least unless they can recover upon a quantum meruit. In view of this contingency, it can hardly be said that the repetition ” involved in the two counts is “ unnecessary.”

And as the authority of the agent is a matter peculiarly within the knowledge of' the defendant, it is difficult to see how he can be harmed by allowing the two counts to stand.

We think the order should be affirmed, with ten dollars costs and disbursements.

HakdiN and Baukee, JJ., concurred.

So ordered.


author: Smith, B. J.:

text:
    THE WAYNE COUNTY SAVINGS BANK, Respondent and Appellant, v. JAMES BRACKETT, and JAMES BRACKETT, as Peesident of the ROCHESTER AND OLEOPOLIS OIL COMPANY, Appellants and Respondents.

      Examination of a parly before 1/riaX — the testimony must be shown to be material and necessary — Oode of Giril Procedure, sec. 872, subd. 4, General Rule No. 83 — right to examine the president of a joint-stock association in an action against the association in his name as president— Code of Giril Procedure, sec. 1919.
    In this action, brouglil; against the defendant Brackett individually and as president of the Rochester and Oleopolis Oil Company, upon -certain notes made hy the company, the plaintiff procured an order for the examination of Brackett before trial, upon an affidavit stating that his examination was material and necessary to the plaintiff to enable it to ascertain whether the defendant company was a copartnership, as alleged in the complaint, or a joint-stock association, as alleged in the answer, to enable it to prepare for trial,, and to enable it to ascertain the authority of Brackett, as president, etc., to make notes on behalf or in the name of the said company.

      Held, that the affidavit failed to show that the testimony sought was material and necessary to the plaintiff’s case, as required by section 4 of subdivision 872 of the Code of Civil Procedure and General Rule No. 83, and that the order should be vacated.

      (¿uare, as to the right to examine the president of a joint-stock association in an action brought against the association in his name as president, as provided in section 1919 of the Code of Civil Procedure.
    Cboss appeals from an order of tbe Monroe Special Term denying tbe defendant’s motion to vacate an order for' tbe examination of tbe defendant Brackett as a witness before trial, and granting tbe motion to vacate sncb order as to tbe witness Warren.
    Tbe action was brongbt against Brackett individually and as president of the Rochester and Oleopolis Oil Company on certain notes alleged to have been made by that company.

      J. B. Perkins, for tbe defendants.

      L. A. Amsden and H. H. Woodward, for tbe plaintiffs.
   Smith, B. J.:

Upon an application under section 870, etc., of tbe Code of Civil Procedure, for tbe examination of a person before trial, whether a party to tbe action or not, tbe applicant must state, by affidavit, facts and circumstances showing that tbe testimony sought is material and necessary to bis case. (Sec. 872, sub. 4, Rule 83; Beach v. Mayor, 14 Hun, 79; Chapin v. Thompson, 16 id., 53; Schepmoes v. Bousson, 1 Abb. N. C., 481; Elmore v. Hyde, 2 id., 129.)

Tbe plaintiff has attempted to comply with that rule in this case-; but has not succeeded. It is not shown or alleged that tbe testimony sought will tend to support the cause of action. All that is alleged in respect to Brackett is, in substance, that bis examination is material and necessary to tbe plaintiff to enable it to ascertain whether tbe defendant company is a copartnership, as alleged in tbe complaint, or a joint-stock association, as alleged in the answer, to enable it to 'prepa/re for tbe trial, and to enable it to ascertain the authority of Brackett, as president, etc., to make notes on behalf or in tbe name of said company. Like averments are made in respect to tbe materiality of tbe testimony of Warren. Similar affidavits were beld insufficient in tbe cases above cited, and we regard those authorities as decisive of this case.

Tbe plaintiff contends that Brackett is a party defendant, and that tbe Code makes the granting of an order for the examination of an adverse party obligatory. In the view we take of tbe statute it is not necessary to decide whether Brackett is to be regarded as a party or not. So far as be is concerned individually, bis liability is not denied. If be is to be treated as a party to the issue, it is by reason of tbe fact that the company is sued in his name as president, as authorized by section 1919 of the Code, and tbe prior act of 1849. (Chap. 258.) It was beld at Special Term, in tbe New York Superior Court, that a person sued according to the act of 1849 is tbe only party defendant, and as such party be may be examined under section 870 et seq. of the Code. (McGuffin v. Dinsmore, 4 Abb. N. C., 241.) In The People v. The Mutual Gas-Light Company of the City of Brooklyn, it was held by the Court of Appeals that section 870 et seq. of the Code do not include the officers, servants, agents or employes of a party, although such party be a corporation, and, accordingly, that the director of a corporation defendant could not be compelled to submit to an examination before trial. (74 N. Y., 434.) That decision was made in 1878. In 1880, the seventh subdivision of section 872 of the Code was amended by adding to it a provision that “ if the party sought to be examined is a corporation, the affidavit shall state the names of the officers or directors thereof, or any of them whose testimony is necessary and material, * * * and the order .to be made in respect thereto shall direct the examination of such persons.” * * * Whatever may be the effect of that provision upon the point decided by the Court of Appeals in the case cited, it does not abrogate the preceding subdivision 4 of the same section, already referred to; on the contrary, it is to be read with it, so that whether Brackett is to be regarded as a party or not, the. affidavit must state facts showing that his testimony is material and necessary. And it is only when such an affidavit is presented to the judge that he is required by section 873 to grant an order for the examination asked for.

It follows that tbe order appealed from, in so far as it denies tbe motion to vacate tbe order for tbe examination of Brackett, should be reversed, and in all other respects affirmed; and tbe appellants are entitled to ten dollars costs of this appeal and disbursements.

HabdiN and BabKeb, JJ., concurred.

So ordered.