author: GAYNOR, J.

text:
    In the Application by James Freel for Peremptory Writ of Mandamus.

      (Supreme Court, Kings Special Term,

      Filed February, 1896.)

    1. Contracts—Performance.
    Where a contract to furnish labor and material for the construction of a public work provides that the contractor should, as to the quality of material furnished and the manner in which the work was done, be subject to the directions of the engineer in charge, and that he should be paid monthly for the materials furnished and the work done, such contractor is not, if the directions of the engineer are complied with, responsible for defects in the work as a whole.
    3. Mandamus—Information and belief.
    Denials upon information and belief, in a proceeding for a "mandamus, and affirmations which are not specific and positive or are only of conclusions, are of no avail.
    3. Municipal corporation—Claims.
    Under the provisions of the charter of the city of Brooklyn, all claims-against the city must be audited and approved by the mayor and comptroller as well as the auditor, »
    Application by James Freel for peremptory writ of mandamus to compel the comptroller of the city of Brooklyn to draw a warrant in payment for work done and material furnished under contract. Granted.
    Tracy, Boardman & Platt, for petitioner; Albert G. McDonald, Oorp. Counsel, for def’t
   GAYNOR, J.

This is an application for a writ of mandamus to compel the comptroller of the city of Brooklyn to issue and sign a warrant upon the treasurer of the city in payment of a claim of the petitioner against the city for work done under a contract with the city. The contract was for the laying of water pipes and the constructing of a reservoir. It was made in the name of the city, by the mayor and the commissioner of city works, they being the officials authorized to make it. The work itself was, by the city charter, done under the authority and control of the said commissioner. Laws 1888, c. 583, tit 16, § n„ The contract required that the chief engineer of the de^.it,merit should, once every month during the progress of the work, make an estimate in writing of the work done and material delivered, and the value thereof according to the prices by units of measure established by the contract; and that the city should thereupon pay the contractor 80 per cent, of such estimate; and that “whenever, in the opinion of the engineer, the party of the second part [contractor]' shall have completely performed this contract on his part, the said engineer shall so certify in writing to the commissioner of city works, and, in his certificate, shall state, from actual measurements, the whole amount of work done by the said party of the second part, and also the value of such work, under and according to the terms of the contract ” ; and that, upon the expiration of thirty days after the acceptance by the commissioner “of the work herein agreed to be done," the city should pay the contractor the amount then due and unpaid for work and material, to be arrived at by deducting all previous payments upon the monthly estimates, and also 8 per cent, of the total contract price, which, by the terms of the contract, was to be retained to remedy any defects which might develop in the work during six months thereafter, unless the contractor remedied them upon notice. It will'be observed that monthly payments were tobe made upon the estimates of the engineer, "while the final payment was to be arrived at by actual measurements. The engineer made thirty of such monthly estimates as the work went on, wdiich were paid. Each went the regular course prescribed by the city charter, namely: It was certified by the engineer to the commissioner of city works, who also certified it; it was then audited by the auditor, whereupon the comptroller drew a warrant for the amount upon the treasurer, and signed it, which was then signed by the mayor and city clerk, and sent to the treasurer, who paid it. The thirty-first monthly estimate was so made, certified, and audited, but the cdmptroller refused to draw and sign the warrant for the amount thereof. Each monthly estimate was styled such upon its face, in these very words. Finally, the engineer made out and certified what is styled on its face the “Final Monthly Estimate.” It is not an estimate, but an adjustment of the whole account upon actual measurements, the work having been completed. It shows the total amount of work and material, and the total price therefor according to the prices by units of measure fixed by the contract. It deducts all previous payments, and also 8‘ per cent, of such total price, as the contract requires shall be done by the final certificate, as has alseady been seen. It does not say in so many words that the contract has been completely performed, but it gives the total, and makes the deductions, and shows the final balance, all as the contract requires of the final certificate; the 8 per cent, being deducted and kept, as aforesaid, against the development of any defects in the work during the next six months, whereas 20 per cent, had theretofore been retained out of the monthly estimates. This certificate must be deemed the final one required by the contract, as certifying the completion of the contract,—that is to say, of all items of work to be done under the contract,—after which ,was to come the six-months test of the work as a whole. It is styled an “ estimate,” but it was not an estimate, nor is it claimed that it was, the claim being that it does not amount to an acceptance of the work as a whole, which eis correct; for the work, as a whole, by the tentis of the contract, was not to be finally accepted until six months thereafter, the 8 per cent." being held meanwhile. By the words of the contract, the commissioner’s acceptance was only of “ the work herein agreed to be done.” This final certificate was approved by the commissioner on November 1, 1893, and audited by the auditor, like all its predecessors, but the comptroller has not made and signed a warrant therefor. He refused to do so in the case of this and the preceding one, though they were duly certified by the engineer and the commissioner (who are made by the contract the judges of the work and of the execution of the contract), and audited by the auditor. The refusal seems to have been based on nothing except an informality which the legislature has since cured. Chapter 595, Laws 1894.

A few days after this case was argued the court of appeals of this state rendered a decision that, in such a case as this, ministerial officer’s of a city, whose duty it is to pay, or to raise money to pay, claims thus arising under contract, and certified and allowed by the officials intrusted by .law with that duty, may not refuse to do so upon the allegation or claim by them that the work was not done, or even that the certificate of it was false, or given under a mistake of facts; that it is for the city itself to make such an issue ; and that such ministerial officers cannot make it for the city. People ex rel. Ready v. City of Syracuse, 144 N. Y. 63; 63 St, Rep. 38. It is for me to yield implicit obedience to this far-reaching decision, and I do so; but it does nob control this case, unless the duties of the comptroller of the city of Brooklyn in respect of claims presented against the city are only clerical or ministerial, and this I do not concede. .The charter of the city prescribes a succession of safeguards to the city treasury. In the first place, no bill or claim can be audited unless it be made out in items, and certified by the officer or head of department by or under whom it is incurred. Laws 1888, c. 583, tit. 5, § 13. In that form it goes to the auditor, an official whose duties are judicial in their nature, and of the highest importance. He has to examine and pass upon the claim in all its aspects, both of fact and of law. It cannot be paid until he certifies that the work has been done and the materials furnished, and that the charges are just, or according to contract, if there be one, and lawfully incurred. Section 1. To satisfy himself of this, he has the right, and it is his duty when necessary or prudent, to take evidence and inspect the books and papers. If he fail in this, it is either because he does not understand the nature of the duties of his office, deeming them merely perfunctory, and, it may be,.to be turned over to a deputy or clerk, or else lie refuses tó fulfill his trust. The charter allows him to appoint a deputy to act “ during his absence,” which means an occasional temporary absence from his office,.from sickness or the like. Title 52, § 26. It does not mean that the auditor may, in general, turn his office and judicial duties over to a deputy. Throop, Pub. Off, § 586; People v. Hopkins, 55 N. Y. 74. A bill or claim, after being thus examined and allowed by the auditor, becomes a voucher, which must be “ ^lso approved by the comptroller” (title 5, § 2) before he may draw and sign a warrant on the treasurer’ therefor; and, finally, such comptroller’s warrant has also to be signed by the mayor, but the mayor is expressly prohibited -from signing it “ unless a proper voucher therefor shall have been first examined and certified to by him” (title 3, § 11).

Thus are these three officials placed by law at the gateway to the public treasury of the city of Brooklyn. I have been at pains to show that auditing duties are given to and required of the comptroller and mayor, as well as the auditor (not in so scrutinizing and minute a degree, it may be, but still actually), in order to make plain that the case which I have cited does not govern the case now in hand. If either the mayor or comptroller doubts the.correctness of a voucher, he has the power, and it is his duty, to examine into the claim; if, for instance, the voucher, in a given case, should show 1,000 feet of common lumber at, say, $2,000 or $10,000, or the like, or should not be itemized, or should be for an expenditure the city has no power to make, he would be -inexcusable if he should sign it, because his duties are not perfunctory, .but, on the contrary, they cast upon him the obligation of judgment and discretion.

It being, therefore, the duty of the comptroller to examine and approve all vouchers coming to him from the auditor, -and that being a duty of substance, as well as of form, as we have seen, it only remains to inquire whether, upon the facts before me, he is justified in his refusal in this instance. That inquiry is met at the threshold by difficulties growing out of the contract itself, which, instead of binding the contractor to definite specifications, leaves the most .essential particulars in respect of work and material to the discretion of the engineer, to be fixed or changed by him as the work goes on. Indeed, the contract in this respect, may be called extraordinary. It might well be supposed that the best material for the sides or the bottom of a reservoir—for instance, the materials, and the proportion in which they should be mixed, to make puddle which will hold water in a reservoir— are well known’; and yet by this contract the contractor is not bound by specifications in these essential particulars, they being left to the direction of the engineer. And therefore, if this reservoir leak’s, the question obviously is whether the blame'lies with the engineer, and not with the contractor. If the contractor followed the direction of the engineer, as he was bound to do, his obligation was fulfilled, whatever the result.

The petition makes out a full case for a peremptory, writ. It states the contract; the performance of the work as directed .by the engineer; the certification thereof, and of the amounts due by the engineer and by the commissioner; and the audit of the amounts due by the auditor. The petitioner thus presents a compíete ease, not depending upon his word alone, but upon the official action of the officials to whom the contract subjected him. It is met first by the affidavit of the comptroller, which is expressly made upon information alleged to bo “received from the department of city works,” except the general and unspecific statement that “ the reservoir is defective and incomplete, and not according to said agreement.” I am therefore required by law to disregard it, for it is a rule that denials upon information and belief, in a proceeding for a mandamus, and affirmations which arc not specific and positive, or are only of conclusions, are of no avail. Merrill, Mand. § 274; Spell. Extr. Relief, § 1664; People v. Common Council of the City of Brooklyn, 77 N. Y. 503. Moreover, the court had before it the affidavits of the engineer and commissioner of the department of city works, which makes of no consequence the comptroller’s allegations of information from them. Next is the affidavit of the former deputy, auditor, who audited the claims. It impeaches the claims in no way, and shows nothing except that the auditor did not audit them, but that the deputy did; a fact well deserving of notice elsewhere, though of no potency here, the validity of the audit not being questioned. Next is the affidavit of the former chief engineer, which alleges, in the most general terms, that the contractor “has not yet complied witli all the terms and conditions” of the contract, and that the work has not yet been accepted’by the city. As we have seen, such indefinite allegations are worthless. They are mere statements of conclusions. But, of course, the contractor has not yet complied with “all the terms and conditions” of the contract. No one claims that he has. He has yet to remedy any defects discovered by the use of the reservoir, as a guaranty of which the 8 per cent, is withheld. It also says that the two unpaid certificates were only intended as a statement of the work done and material furnished. Certainly; no one claims more concerning them;' and that the final one was not an acceptance of the work does not need to be vouched for by affidavit, for such is the contract as we have seen,—the work to remain thereafter on test for six months. It further avers that thereafter the reservoir was tested, and is now being tested, by having water stand in it, but no defect whatever is specified. But this all has to do with the 8 per cent, reserved under the contract to remedy any defects which should be shown by test or use of the reservoir after the work and material had all been certified and paid for. If there were any known defects, the engineer is the one who could specify them to the court. And if the reservoir leaks, which the engineer does not say, it would be for the engineer to show how the contractor is responsible for it; for, as I have pointed out, he was obliged to use the puddling and other material specified by the' engineer, and as directed by the engineer. Next is the affidavit of the former commissioner. It does not impeach the certified work and material, nor the work as a whole, either generally or in any particular; and it points out that 8 per cent, was reserved, under the terms of the contract, as a guaranty that any defects developed upon the test would be remedied. Next comes the affidavit of the present commissioner, in which he says that since February 1, 1894, he has examined the work, and “that the petitioner has not fully complied with all the terms and conditions contained in the said agreement, to be kept and performed by him, and he has not fully performed the said agreement on his part, and he has not completed the work to be done by him under the said agreement, and such work so to be performed by him has not been accepted.” But, again such unspecific statements are worthless. They are not statements of facts, bnt of conclusions, whereas the court is to draw the conclusions, and may do so only upon specific statements of fact. That the work was not accepted by the final certification of work and material does not need to be sworn to, for such is the contract. The test was to come later, and 8 per cent, was reserved to meet it. That test was begun, and is still going on, without a result, according to the engineer’s affidavit, as we have seen. The affidavit then states information received from the said engineer. But, again, that cannot count; and besides, the affidavit of the engineer is before the court. The affiant then states that after he became commissioner the petitioner worked upon the reservoir to remedy defects, which are not specified, and that in September, 1894, he informed the commissioner that he thought they were corrected, and that, to ascertain whether that was the fact, the affiant began a new test, which he says “is still being continued as rapidly as practicable, with unsatisfactory results thus far, as the water let into and stored in the reservoir for such test has still continued to leak out to an improper extent, and to such an extent as would not have occurred had the work, under the said contract,, including that stated in the thirty-first and thirty-second estimates, been properly done.” It would be difficult to be more indefinite than this. How or where the reservoir leaks, or of the specific cause thereof, the court is not informed. The commissioner says it leaks to an improper extent. Whether this covers a gallon or 10,000 gallon a day is not stated. It is a mere conclusion, supported by no stated fact. And if the puddling leaks, is it the fault of the engineer, who specified its ingredients and their proportion, or is it that of the contractor,who had so obey him? And let it again be stated that the 8 per cent, is reserved as a guaranty that the contractor will remedy defects, and the commissioner’s affidavit shows his willingness to do so. The work and material actually done and furnished are required by the contract to be certified and paid for monthly. For defects which should develop after the completion of the work as a whole, the contract makes separate and independent provision, as we have seen. The affidavit then continues:

“It has not yet been practicable to ascertain the full extent of the defects in the reservoir, which can only be revealed after such a test of the sides of the reservoir as has not yet been practicable.”

It cannot be expected that from this statement the court is to presume there are defects which the commissioner has not yet been able to find. And why has “such a test” as the commissioner seems to have in mind not yet been practicable? The six months allowed by the contract have elapsed, and the 8 per cent. is still retained. When is the test to be practicable which is to discover defects which should have been discovered in six months but are not yet discovered, and may not yet exist at all. The affidavit then states that “the defects disclosed, and likely tobe disclosed, in said reservoir, are likely to require” more expenditure than the amount reserved by the contract. This court is not informed what this succession of likelihoods is based upon. The defects disclosed are not described, and those likely to be disclosed are not even hinted at. The affiant then states that, upon investigation since he came into office, he has ascertained that the clay used for puddle was the property of the city, “having been taken by petitioner from the property of the city at Smith’s pond, a little over a mile from the reservoir, and without agreement or consent of the city;” and then follows an argument that the city has a valid claim therefor. The commissioner does not state how he ascertained this, nor any fact which enables him to allege it, but the affidavit of L. R Clapp is produced to substantiate it. He is an assistant engineer in the department of city works, and his affidavit avers that he remembers the contract of the petitioner with the city “ for digging out and enlarging Smith’s pond; ” that he had the supervision of the work: that he is also “ familiar with the contract” to construct the reservoir, which is the subject of the present controversy; and he then adds:

11 None of the clay dug and taken by said Edward Freel from the property of the city at Smith’s pond, and which was by him used as clay for puddle in the construction by him of the said reservoir, was either dug or taken under any of the provisions of the said contract or plans, or orders of the engineer, nor was it necessary to dig the same in order to perform the said contract for digging and enlarging Smith’s pond.”

Here is a general statement that none of the clay in question was taken from Smith’s pond under the reservoir contract. I do not see the use of this statement. If the earth was taken, the terms of the reservoir contract determine whether it was taken under it. And the concluding statement, “nor was it necessary to dig the same in order to perform the said contract for digging and enlarging Smith’s pond,” is worthless, it being a mere conclusion of the affiant. He does not say that it was not dug out of Smith’s pond in carrying out the contract for enlarging Smith’s pond, but that it was not necessary to dig it out in performing such contract. The real truth is obviously veiled by this affidavit. No doubt, the clay was dug out of Smith’s pond, and the court is not permitted to take this affiant’s conclusion that it was unnecessarily dug out. And, if it was unnecessarily dug out, it is not seen how that would make any difference, and no fact is stated from which the court may draw the conclusion that it does make a difference. The earth excavated at Smith’s pond would presumably belong to the contractor, and it would be his duty to get it out of the way. Cooper v. Kane, 19 Wend. 386. The contract now before the court expressly contains such a requirement. But the answer to this claim against the petitioner, left wholly unsubstantiated by any facts from which the court may draw a conclusion, is that it does not enter into the question of the performance of his reservoir contract; it pertains to his Smith’s pond contract; and, if the city actually has any such claim for the larceny or conversion of its property, it is for it to bring action upon it, so that the case may be tried. It cannot be mixed up with the audit of the contractor’s claims under the reservoir contract, for the auditing officers have no power to pass upon it. They can only audit claims against the city, not claims by it.

Finally, the affidavit of the commissioner asserts a liquidated claim against the contractor for $250 a day for not completing the work within the time prescribed by the contract. The contract requires the contractor to begin the work on a written notice from the engineer, and 'to complete it within two and one-half years thereafter, and provides that if he fail to complete the work within that time, “or within such further time as may be allowed by the commissioner of city works,” he shall pay to the city $250 a day for each day he shall be in default, “as the liquidated damages which the party of the first part will suffer by reason of such default, and not by way of penalty.” And, after providing that such liquidated damages might be deducted from moneys that should come due under the contract, the clause ends as follows: “ Provided, however, that said commissioner of city works shall have the right to extend the time for the completion of said work if he should decide so to do.” The commissioner, in his affidavit, says, on information and belief, that such written notice was given to the contractor on January 3, 1890. Here, again, is a statement on information and belief, which must be disregarded. The last monthly estimate includes work and material done and furnished up to August 21, 1893. The final certificate is not of further work, but is only an adjustment of the whole account upon actual measurements, and was approved by the commissioner of city works on November 1, 1893, which was before the present commissioner came into office! The question of exacting the $250 a day was left by the contract wholly to the commissioner, he being empowered to prolong the contract time at pleasure. From the undisputed facts, and especially from the final certificate, it appears that the commissioner' under whom the work was done did not claim any damage for delay, but, on the contrary, accepted the work and material, and certified it for audit in full. This, in view of the power and discretion vested in him concerning time of performance, is conclusive. I have not omitted to notice the pro vision of the contract upon which stress is laid,—that no certificate of the engineer shall bind the city, or any department or officer; but, at the same time, I have noted that it does not say certificates of the commissioner shall not be binding, and while the auditor, comptroller, and mayor have powers of audit, they have not the power to abrogate the lawful acts of the commissioner. But, at all events, the affidavit of the present commissioner fails to make out a claim on this head, and the able brief of the learned counsel for the city seems to concede this by failing to press such a claim. Thn commissioner’s affidavit states that on March 12, 1894, ha served a notice upon the contractor that the city would hold him. liable for all its rights under the contract, and he specifically claims the liquidated damages from that date. But this is based upon a misconception of the contract. No such damages could accrue after that date. The reservoir was then, by the terms of the contract, and had been from the date of the final certificate, as we have seen, and as is alleged by both sides, undergoing the period of test provided by the contract for the development of defects for which the 8 per cent, is held.

In conclusion, the contract is not for a gross sum, but provides that the actual work done and material furnished each month shall be paid for according to the prices fixed for the units of measure specified herein. It subjects the contractor to the direction and control of the engineer in every particular concerning which there is any question suggested in this case, and also generally ; and the affidavits on behalf of the city do not specify any particular in which the contractor failed in his contract. No particular work is said to be badly done, nor is any material said to be unfit, or inferior. The finger of objection is put upon nothing. And when we come to the matter of the discovery or development of defects by test, for which the contract reserves six months in time after the last certificate for work and material, and eight per cent, of the total contract price, as we have seen, it has to be said that although -not only the six months, but more than a year, had elapsed from the date of the final certificate to the date of the submission of this case to the court, there is not a specific defect shown, and the affidavit of the commissioner goes to the extremity of saying that the reservoir is now being tested for defects “ likely to be disclosed.” Nor is it even suggested that the contractor has manifested any unwillingness, much less that he has refused to supply any and all omissions and defects that have been or may be pointed out, but the contrary is shown by the respondent. It seems to me that, if there were any, the commissioners of city works and his engineers could readily discover and particularize them. General and indefinite staten ents will not do in law, any more than in any other relation. I have made a careful examination of this case, with a result which I had not expected, and which justice requires that I do not try to avoid.

The motion is granted, subject to the credits shown.


source: Caselaw Access Project

author: McADAM, J.

license: Public Domain

text:
    Joseph Silberman, Pl’ff, v. Samuel Fretz, Def't.

      (Supreme Court, New York Trial Term,

      Filed March, 1896.)

    1. Contract—Entire and severable.
    The entirety or divisibility of several items in one contract is always a question of intent and frequently one of fact.
    3. Same. .
    A contract is said to he severable when the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item or is left to be implied by law.

      3. Same.
    The acts or consent of parties may make an e ntire contract divisible.
    4. Same.
    If the party elects to accept the part delivered, appropriate the same to his own use, and by his acts evince a waiver of the conditions as to entire delivery, he then becomes liable to pay for what was actually delivered.
    5. Same.
    In such case, any remedy of the vendee is limited to recoupment for nondelivery of the other articles.
    J. J. Frank, for pl’ff; Carter, Hughes & Cravath, for def’t.
   McADAM, J.

action is by the plaintiff, as the assignee of Luckmeyer, Shefer & Co., to recover $758.86 for twenty pieces of Helvetia delivered to the defendant November 18, 1886. The defense is that the goods were but a partial delivery under entire and indivisible contracts made on August 12 and 18, 1886, for a much larger quantity, and that payment was not to be made untill after full performance, which was a condition precedent.

There is no principle more firmly established in our jurisprudence than that under an entire contract there is no right of action, and can be no recovery, until the entire quantity contracted for is delivered. Mead v. Degolyer, 16 Wend. 632; Champlin v. Rowley, 18 id. 197; Ming v. Corbin, 32 St. Rep. 1002; Smith v. Brady, 17 N. Y. 173; Baker v. Higgins, 21 id. 398; Catlin v. Tobias, 26 id. 217; Kein v. Tupper, 52 id. 550; Butler v. Butler, 77 id. 472; Nightingale v. Eiseman, 121 id. 288; 30 St. Rep. 995. The defense was made on the assumption that the contracts of August 12th and 18th were subsisting obligations, and that the delivery made was in- part performance thereof. But exhibit five shows that a new understanding was had and reduced to writing October 22, 1886, by which the defendant was to receive on November 1 “ twenty pieces Helvetia, according to sample, forty-four inches; twenty pieces Helvetia, according to sample, forty-eight inches. Further, in the course of November, additional ten pieces, forty-four inches; ten pieces, forty-eight inches,” etc. The writing then contains the significant sentence, “ This disposes of the old contract,” which, interpreted according to the obvious intention of the parties,, means,that in consideration of the new agreement the orders of August 12th and 18th were canceled; and they may, for this reason, be regarded, as out of the case.

It is sometimes difficult to determine what constitutes an entire contract, for there is a class of mixed cases, partaking of the character bothxof entire contracts and of severable contracts, in which, although a certain definite number or quantity of things are bought together, the price is fixed either by a certain agreed rate, to be paid per single article or measure or by affixing a particular valuation to each thing, if the things be of different kinds. Story, Sáles, § 243. Or, as another writer states it:

“No precise rule can be given by which this question, in a given case, may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.” Pars. Cont. (6th ed.) 517.

Indeed, the entirety or divisibility of several items in one contract is always a question of intent, and frequently one of fact Ming v. Corbin, 142 N. Y., at page 341; 59 St. Rep. 14. In the ease cited the cou-rt (at pages 340, 341, 142 N. Y., and 59 St. Rep. 14), in reiterating the rule that “ a contract is entire when the parties intend that the'promise by one party is conditional upon entire performance of his part of the contract by the other party,” observed:

“ The contract is said to be reverable when the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item or is left to be implied by law.”

The plaintiff proved that prior to the delivery of the 20 pieces in FTovember, 1886, the defendant was informed that they constituted all the Helvetia the plaintiff’s assignors had in stock, and that no more could be expected until the following January of February, when they hoped to obtain the remainder. The defendant therefore knew that the delivery of the twenty pieces was complete in itself, and, as no different time for payment had been specified, the price became due, by operation of law, immediately after their delivery. Sickles v. Pattison, 14 Wend. 258; Benj. Sales (1st Am. Ed.) § 314. In this respect the case differs from Nightingale v. Eiseman, supra, and other authorities relied on by the defendant.

The writing of October 22, 1886, signed by the defendant, contains the following.

“As soon as I receive the above-mentioned 40 pieces of Helvetia, I bind myself to pay with them 40 pieces of Gloria I received October 18th, amounting to $1,278.93, after deducting 7 per cent discount.”

After receiving the twenty pieces, to recover the price of which the action is brought, the defendant paid $1,278.93, which is significant as tending to show that the delivery made was, under the circumstances, regarded by him as a satisfactory performance of the order he had given. The acts or consent of "parties may make an entire contract divisible. Winnie v. McDonald, 39 N. Y. 233; Stokes v. Recknagel, 38 N. Y. Supr. Ct. 368. In Tipton v. Feitner, 20 N. Y. 423, the plaintiff, in one agreement, contracted to deliver forthwith a quantity of dressed pork to the defendant for a certain price, and also to sell him, upon their arrival, at a different price, a number of live hogs, then on their way, and expected in a few days, no stipulation being made as to the time of payment for either. The pork was delivered, but the plaintiff violated his contract by not delivering the live hogs. Held, that this did not preclude him from recovering the price of the dressed pork, subject to recoupment for the defendant’s damages from the breach of contract as to the live hogs. See, also, Swift x. Opdyke, 43 Barb. 274. Here the price of the twenty pieces delivered was conceded to be $758.86, and this eliminates questions which might have arisen if an aggregate value only had been fixed. True, the defendant was not bound to accept a delivery of twenty pieces only, if not in accordance with the understanding of the parties. He had a right to reject or retain them, as he saw fit. Yet if he elected to accept the part delivered, appropriated the same to his own use, and by his acts evinced a waiver of the condition as to entire delivery, he then became liable to pay for what was actually delivered. Sickels v. Pattison, 14 Wend. 258; Brady v. Cassidy, 9 Misc. Rep. 107; 59 St. Rep. 729; affirmed, 145 N. Y. 171; 64 St. Rep. 582; O’Neill v. Crotty, 34 St. Rep. 764; Avery v. Wilson, 81 N.Y. 341. The correspondence between the parties shows that the defendant did not expect to avoid payment for the goods delivered, except by recouping his damages for nondelivery of the remainder. He put himself squarely upon this postion, which is entirely “ inconsistent with the claim now made that he is not liable at all.’’ Avery v. Wilson, supra. If the attitude he assumed was warranted by his understanding of the facts, the defendant should have recouped his damages for nondelivery of the of the other pieces ; for this, according to the rulings in Tipton v. Feitner and Avery v. Wilson, supra, was the only course then available to him. For some unexplained reason, however, he did not see fit to invoke this means of defense.

Upon the record the plaintiff is entitled to judgment for $1,175.50, the amount claimed, and interest, with costs.


author: GAYNOR, J. GAYNOR, J.

text:
    Brooklyn Elevated Railroad Company, Pl’ff, v. City of Brooklyn, Def't. Kings County Elevated Railroad Company, Pl’ff, v. Same, Def't.

      (Supreme Court, Kings Special Term,

      Filed March, 1896.)

    1. Public officers—Assessors.
    The law does not permit public officers, charged with the doing of duties in their nature judicial, to impeach the good faith and verity of their acts.
    2. SajTe.
    The attestation of the assessment rolls by the assessors in the form and words prescribed by law is a judicial act of unquestionable verity.
    3. Taxes—Assessment.
    The provision of the city charter of Brooklyn, requiring property to be designated on the assessment rolls by lot and block number, does not apply to railroad contracts, telegraph lines, etc., in the street, but only to lots.

      4. Same—Review.
    The courts have no power to review assessments for general taxation for alleged inequality or excessiveness, except under a writ of certiorari as allowed by chapter 269 of 1880.
    5. Same—Reduction.
    The court has no power to reduce taxes upon consent of officials.
    6. Same—Assessed valuation.
    An assessment for property bonded and stocked for about $13,000,000 at $1,100,000 was held, in this case, not to be excessive.

      1. Same.
    An assessment of property bonded and stocked for about $3,000,000 at about $3,000,000, was held, in this case, not excessive.
    8. Same.
    That the corporation liad overbonded and overstocked itself, thereby to create inflated values or unearned fortunes, is no reason why its obligation to pay its just share of taxes upon its actual property should be made second to its obligation to pay interest upon such bonds or dividends upon such stock.
    Actions by the Brooldyn Elevated Railroad Company and the Kings County Elevated Railroad Company, respectively, against the city of Brooldyn, to enjoin a sale of their properties for delinquent taxes, consolidated. On motions to continue temporary injunction.
   GAYNOR, J.

This railroad corporation brings this action to obtain an .injunction to prevent the registrar of arrears of the city of Brooldyn from selling its structure for nonpayment of its taxes. The alleged grounds upon which it seeks to evade payment of its share of taxes for the support of government, and chrow the same upon the other taxpayers, are without merit. It says that two assessors did not together examine its structure each year before valuing the same for taxation. It is enough to say in answer that each assessment roll is attested by the affidavit of two assessors, as required by law, that they did not examine all taxable property therein set down. The papers before me show the apparent willingness of at least two of the assessors to make doubtful, if not to contradict, this •solemn attestation and oath by them of public duty done; but the law, for reasons of sound public policy, does not permit public officers charged with the doing of duties in their nature judicial to impeach the good faith and verity of their acts. Assessors act under the law upon a notice of hearing to all persons interested, and after hearing all who come before them. Their attestation of the assessment rolls in the form and words prescribed by law is a judicial act of unquestionable verity. Barhyte v. Shepherd, 35 N. Y. 238; Cooley, Tax’n, 260. If they were allowed to impeach it by their testimony, no tax levy, however exactly and legally cast, would be safe. But beyond this it is clear as a matter of fact that at least two of the assessors did together examine the plaintiff’s property in each ward. It is also claimed that the taxes are void because the sections of structure of the plaintiff in each ward have not been designated upon the assessment roll by lot and block numbers. The requirement of such designation in the charter of Brooklyn applies only to lots. It was not intended to apply to railroad tracks, telegraph lines, and the like in the streets; and the obstacles in the way of so applying it are obvious. It is also alleged that the valuation is excessive. It would be enough to say that that is not, and never was, ground for maintaining an action like this. The courts have no power to review assessments for general taxation for alleged inequality or excesgi ven ess, except under a writ of certiorari as allowed by chapter 269 of the Laws of 1880, which statute is part and parcel of our process of taxation, and to be invoked at the time. D. & H. Canal Co. v. Atkins, 121 N. Y. 246; 30 St. Rep. 928; People ex rel. D. & H. C. Co. v. Parker, 117 N. Y. 86; 26 St. Rep. 698. That act was passed only because prior to that time the courts had no power in the premises at all, except such as could' be exercised strictly upon a return to. a common-law writ of certiorari of the rcc.u'd of the assessors’ proceedings. People v. Smith, 24 Hun, 66; People v. Board of Sup’rs, 60 N. Y. 381. Something is said in the papers before me of this company’s taxes having been reduced several years ago by a j udgment upon consent of certain city officials. There must be some inaccuracy or inadvertency about this, for this court has no power to reduce taxes upon consent of officials. If the power to reduce taxes were possessed by officials, the way would be open to more political favoritéism and greater official corruption than has yet been known. But it see'ms timely to notice upon the actual figures and the merits the claim of this company that its structure is excessively valued for taxation, especially as it is urged that the assessors did not duly consider the earnings of the company in fixing such valuation The twenty miles of structure of the company is valued upon the assessment rolls at a total valuation of only $2,-903,965, making a tax of about $80,000 each year. And yet the company is bonded for $12,968,000, and stocked for $13,283,000, making a total of over $26,000,000. If the company’s structure is' not worth the assessors’ valuation of $2,903,965, what is to be said of this total of $26,000,000 in bonds and stock? What was it issued-for? If this assessed value were doubled, and put at $6,000,000 (for illustration), or trebled, and put at $9,000,000, in order to get the actual value, the disparity between the actual value and the amount of bonds and stocks would still be striking. And due consideration, in this connection, of the earnings of the road, makes no better case for the company. The papers before, me show that during the time in question it has been carrying an, average of upward of 95,000 passengers a day. This enables the; gross receipts to be accurately stated. In fact, the company’s, report to the railroad commissioners in 1893 (the year in ques-' tion) gives the gross receipts from operation of $1,935,683.84. If 55 per cent, be allowed for operating expenses, including re-, pairs, the remainder will be net earnings. But the' said report gives the net earnings as $843,970.28, which sum I take. This is a net income of over 28 per cent, on the value which the assessors have placed upon the company’s structure (viz. $2,903,965, or, in round numbers, $3,000,000), or of over 14 per cent, on double that value (viz. $6,000,000), or of over 9 per cent, on treble that value (viz. $9,000,000). There is no house, store, olfactory property in Brooklyn favored like this in taxation. To say that this company cannot-pay its taxes out of its net income, because it is all consumed in paying interest upon its said excessive issue of bonds, is not a permissible answer. If it was, it has only to continue to issue more bonds, and never pay any taxes. These bonds are not upon the actual property of the company alone, which it says the assessors have excessively valued at less than $3,000,000, but also upon the valuable franchises which have been given to it by the government. For the company to issue bonds on such franchises, the gift of the government to it, and then say to the government that it cannot or shall not pay any taxes upon its actual taxable property, out of its income upon actual investment, because it Erst has to pay interest upon such bonds, is a position which cannot be justified either in law or in morals. The excessive issuing of bonds and stock by corporations enjoying public franchises, naturally leads to the unjust cutting down by them of all natural and just expenses, as well as the refusal to pay just taxes, in order that interest and dividends may be paid upon such excessive obligations. The first duty of this company is to the government which gave it life and endowed it with valuable privileges and franchises. If all taxpayers should follow the example of this company, and refuse to pay their taxes, the government would be brought to a downfall. I find no truth or merit whatever in the assertion of the company that its property is overvalued. That it has overbonded and overstocked itself, thereby to create' inflated values or unearned fortunes, is no reason why its obligation to pay its just share of taxes upon its actual property should be made second to its obligation to pay interest upon such bonds or dividends upon such stock. It is no reason why its share towards the support of the government should be thrown upon the other taxpayers.

The motion to continue the temporary injunction is denied, and the said injunction is vacated.

In the similar case of the Kings County Elevated Railroad Company against the city of Brooklyn Mr. Justice GfAYNOR at the same time filed the following opinion:

GAYNOR, J.

The opinion filed herewith in the similar case of the Brooklyn Elevated Railroad Company is applicable to this company’s case. I have examined into its financial condition with care, as I did also into that of the other company. It is pertin-, ent to add that this company is assailing as excessive an assessed valuation of its nine miles of road at a total of only $1,111,190 for taxation, although it has issued $9,200,000 of bonds and $3,-550,000 of stock, making a total of $12,750,000. Its bonds alone average over $1,000,000 a mile, while the total assessed value of its whole line is only about $1,000,000. The company seems to labor under the false notion that its obligation to pay interest upon this grossly excessive issue of bonds is superior to its obligation to pay its just share towards the support of the government which gave it life and protects it, and that it is therefore permissible for it to refuse to pay, and try to shoulder that share off upon the other taxpayers. A government which permitted the like could not, in the nature of things, long endure.

The motion to continue the temporary injunction is denied, and the said injunction is vacated.


author: BEEKMAN, J.

text:
    Margaret O’Brien, Pl’ff, v. William O’Brien, Def't.

      (Supreme Court, New York Special Term,

      Filed September, 1895.)

    1. Lunatic—Appointment of guardian.
    In a proceeding for the appointment of a guardian for an alleged lunatic the proper practice is to commence the proposed action, and upon the summons and complaint and affidavit showing that the defendant is mentally competent, but has never been judicially declared to be so, to apply to the court for an order designating some person upon whom a copy of the summons and complaint shall be served as provided in section 427of the Code.
    2. Same.
    There is no provision in the Code for the appointment of a special guardian ad litem for a lunatic, except where the latter has been judicially declared to be incompetent, and his committee is not deemed fit to represent him.
    Motion for plaintiff for the appointment of a guardian for defendant, an alleged lunatic.
    N. J. O’Connell, for pl’ff.
   BEEKMAN, J.

— In this case the proper practice is to commence the proposed action, and upon the summons and complaint and an affidavit showing that the defendant is mentally incompetent, but has never been judicially declared to be so, to apply to the court for an order designating, some person upon whom a copy of the summons and complaint shall be served as provided in section 427 of the Code of Civil Procedure. Of course, the defendant must also be served. There is no objection to inserting in the-order a provision requiring the person so designated to appear in the action for the purpose of protecting the interests of the lunatic. There seems to be no provision in the Code for the appointment of a special guardian ad litem for a lunatic, except where the latter has been judicially declared to be incompetent, and his committee is not deemed fit to represent him.


text:
    Hubbard, Pl’ff, v. The Jaeger Electric Lamp Company, Def’t.

      (Supreme Court, New York Special Term,

      Filed September, 1895.)

    1. Sheriff—Fees of Auctioneer.
    Section 12, chapter 523 of 1890, authorizing a sheriff to employ an auc^ tioneer and pay him a fee not to exceed the “customary market rate," must be construed to mean the market rate not exceeding 24 per cent., and
    ■ a custom to charge 5 per cent, cannot be shown to establish a market rate in violatioii of law.
    2. Same—Custom.
    The law will not recognize a custom, however general, which rests upon a breach of the law.
    Motion to tax the fee of sheriff.
    Cr. S. Carpenter, for pl’ff; Charles E. McLean, for sheriff.
   BEEKMAN, J.

— The objection made to the charge of the sheriff for a keeper is untenable. The statute (Laws 1890, c. 523, § 15) expressly authorizes him to appoint and pay a keeper of property oh which a levy has been made “ not more than three dollars for each day of twelve hours” he is actually and necessarily employed in the safe-keeping of such goods or property. In the present case the affidavit of the keeper is furnished, showing an employment and occupation within the terms of the statute. The most serious objection presented to me for my consideration is to the auctioneer’s charge, for his commissions, which have been computed at the rate of 5 per cent, upon the amount made on. the execution, the claim being that he is entitled to charge only 2|- per cent. I think this exception is well taken. Laws 1890, c. 523, § 12, which authorizes the sheriff to employ an auctioneer, provides that the former shall “withhold from the proceeds of the sale a sum sufficient to compensate the auctioneer for the services rendered by him in conducting such sale, together with all necessary disbursements of such auctioneer as may be approved by the sheriff or by the attorneys for the parties to the said action or proceeding, and to pay over such sum to the said auctioneer; but in no case shall such auctioneer’s fee exceed the customary market rate of auctioneer’s fees for similar services.” It is contended on the part of the sheriff that 5 per cent, is such customary market rate. However that may be, the statute of this state which regulates the charges of auctioneers provides that “no auctioneer shall demand or receiver a higher compensation for his services than a commission of two and one-half per cent, on the amount of any sales, public or private, made by him, unless by virtue of a previous agreement in writing between him and the owner or consignee of the goods or effects sold.” 1 Rev. St. p. 532, § 23. For a violation of this mandate he is made liable to the party aggrieved for a penalty of $250 and the moneys illegally received. The act of 1890, which limits the charges of the sheriff’s auctioneer to the “customary market rate,” must be construed as meaning such market rate not exceeding 2Í¿ per cent. The law will not recognize a custom, however general, which rests upon a breach of the law, To hold that, “the customary market rate” referred to in the act of 1890 was intended to include unlawful charges customarily made by auctioneers involves an absurdity which the courts will not impute to the legislature. This item must therefore be reduced one-half. The item for advertising, charged at $8.10, has been reduced by the sheriff to $3.60. the amount first charged having been erroneously computed by the bookkeeper. I do not find any other errors in the charges submitted. It may be that he property sold has realized'much less than its actual value, but there is nothing in the papera to show that this was the result of any negligence on the part of the sheriff. It is perhaps a misfortune that the plaintiff’s attorney did not have notice of the sale, but there is nothing in the law which requires the 'Sheriff to give him any such notice. He should have inquired himself in respect to the levy and the time of sale. It was certainly more his duty to do so than it was that of the sheriff to seek him out and. give him the desired notice. Let an order be submitted in conformity with the above views.


author: LAWRENCE, J.

text:
    Frank A. Munsey & Company, Pl’ff, v. Tadella Pen Company, Def't.

      (Supreme Court, New York Special Term,

      Filed December 19, 1895.)

    1. Contract—-Construction.
    A contract, which recites that defendant’s quarter-page advertisement was to be inserted in every issue of plaintiff’s magazine, not less tjhan twelve,.during the year following its first insertion, and that every term of the contract was mateiial, a condition upon the strict performance whereof defendant was to pay a certain sum for a quarter-page, is entire, and plantiff cannot legally demand payment for any portion of the advertisements until the expiration of the year.
    3. Same.
    The mere fact that the defendant made one payment to the plaintiff thereon is not such a.practical construction of the contract by the parties as to take the case out of the general rule.
    Demurrer to the answer upon the ground that it does' not state facts sufficient to constitute a cause of defense.
    Stern & Eushmore (Charles E. Eushmore, of counsel), for pl’ff; Wayland E: Benjamin, for deft.
   LAWRENCE, J.

This is a demurrer to an answer on the ground that it does not state facts sufficient to constitute a defense to the cause of action set forth in the complaint. The defendant made an offer in writing to the plaintiff in these words:

“Please insert our one-quarter page advertisement in Munsey’s Magazine for one year. This advertisement is to appear in every issue (not less than twelve) of Munsey’s Magazine during the year following its first insertion hereunder, beginning with August, 1894. To appear always on back cover page. Matter is to be changed as often as we direct, and proof is always to be submitted to and approved by us before publication. Every term of this offer is material, and a condition upon the strict performance whereof we are to pay you one hundred and eighty dollars per quarter page at oúr office in ISTew York. This price you warrant to be the lowest at which you sell advertising space on back cover in said publication, and if hereafter, during the continuance of this contract, you sell space on back cover page for a lower price, then the price to us shall be reduced to equal such lowest price. On business which you place through advertising agents, the term ‘price’ includes the commission which you pay or allow such agent

“Tadella Pen Company, ,by

This offer was occepted by the plaintiff, and the offer and acceptance constitute the contract between the parties.' It is alleged the complaint that the plaintiff has inserted and published in said magazine the one-quarter page advertisement supplied to it by the defendant in accordance with the terms of the contract above referred to, in the issues of said magazine for August, September, and October, 1894; also, that there is now due to the plaintiff from the defendant the sum of $180 for the insertion of the defendant’s advertisement in the August number, and the further sum of $180 for the insertion of said advertisement in the September number, and the further sum of $180 for the insertion of said advertisement in the October number, of said magazine, making in all the sum of $540, and that no part of said sum has been paid, except the sum of $180, which was paid on August 31, 1894. The answer admits that the plaintiff has inserted and published in its magazine the one-fourth page advertisement supplied to it by the defendant, in accordance with the contract above set forth, in the issues of said magazine of August, September, and October, 1894, but denies each and every other allegation in respect to said contract, and its liability thereon. It is claimed by the plaintiff that the contract is not entire, in the sense that the plaintiff is postponed in the right to demand the payment for any part until the completion of the whole. It is claimed by the defendant that the contract is an entire one, to publish the advertisement for one year, and that, if the plaintiff failed to publish the advertisement for the full year, it would not be entitled to recover anything. After examining the contract, I am of the opinion that the contention of the defendant is correct. The contract docs not say that the $180 becomes due every month, but requires a one-fourth page advertisement for one year, to appear in every issue, “not less than twelve,” during the year beginning August, 1894. It also provides that “every term of this offer is material, and a condition upon the strict performance whereof we are to pay you one hundred and eighty dollars for one-quarter page.” The term of publication for one year is certainly a material matter. It was a condition which the parties agreed upon, and the court ought not, by construction, to substitute a different condition. The authorities cited by the defendant seem to me fully to sustain its contention. In Davis v. Maxwell, 12 Metc. (Mass.) 286, Davis contracted to work on Maxwell’s farm, “seven months at $12 per month.” It was held that the contract was entire, and required merely payment of $84 at the end of seven months, not $12 at the end of each month, and that Davis, by voluntarily quitting before seven months elapsed, lost the right to recover anything for the time he worked. In Baker v. Higgins, 21 N. Y. 397, the contract was, “I will deliver 25,000 pale brick for $3 per M., and 50,000 hard brick at $4 per M., cash.” The offer was accepted, but after delivering 10,000 pale and 10,500 hard brick, in one delivery, payment therefor was demanded and refused. In the action for the price it was held that the delivery df the entire quantity was a condition precedent to any payment. In Casten v. Decker, 3 St. Rep. 429, the plaintiff made an agreement with the defendant that he and his wife would work for him for a stated term at a fixed compensation per month. Before the end of the term agreed upon the plaintiff ceased work ■under the contract, alleging as a reason the sickness of his wife. It was held that the agreement was an entire and indivisble one, •for services, and that the plaintiff was not entitled to recover without complete performance, unless such performance was in some manner excused, but that the sickness of his wife was an adequate excuse. To the same effect is the case of Fahy v. North, 19 Barb. 341. In Mount v. Lyon, 49 N. Y. 552, the defendant contracted to sell and deliver to the plaintiff, within three months, 400,000 brick, at $10.50 per M. The defendant delivered 213,500 brick during the specified time. In an action to recover damages for the nondelivery of the residue, it was held that the delivery of the entire quantity was a condition precedent to the right of the defendants to demand payment, and the fact that when they discontinued the delivery the plaintiff had not paid for this delivery was not an excuse for the nondelivery of the residue. In that case it would appear that the plaintiff had paid for the portion of bricks that had been delivered before the commencement of his action. Allen, J., says:

“The delivery of the entire quantity was a condition precedent to the right of the seller to demand payment for any part. Nq time of payment being fixed- by the contract, the law makes the price payable upon the delivery of all the brick, and not before,” citing Baker v. Higgins, supra, and Husted v. Craig, 36 N. Y. 221.

Upon these authorities, I am of the opinion that the contract was entire, and that the plaintiff could not legally demand payment for any portion of the advertisements until the expiration of the year, and that the mere fact of the defendant’s having made one payment to the plaintiff is not such a practical construction of the contract by the parties as to take the case out of the general rule. As before remarked, in the case of Mount v. Lyon it appeared that the plaintiff had paid for a portion of the goods; and yet it was held that the contract being entire, and no time of payment being fixed, the defendants were not entitled to demand, payment for any portion of the brick until the whole had been delivered.

For these reasons I am of the opinion that there should be judgment for the defendant upon the demurrer to the answer, with leave to the plaintiff to amend upon payment of costs.


text:
    In the Matter of Bloomingdale et al.

      (Superior Court, New York Special Term.)

    Excise—License.
    Tlie court will not interfere with the enforcement by the board of excise of a rule requiring applicants to surrender a current or existing license before the issuance of a license for a new place.
    Certiorari, in re Bloomingdale and others, to compel the granting of á liquor license by the board of excise.
   LAWRENCE, J.

The relators, on the 8th. of August, 1894, made an application for a storekeeper’s license for the premises 990-1008 Third avenue. The application was referred to one of the inspectors of the board of excise, who reported favorably thereon. On the 7th of September, 1894, the bond which was attached to said application was approved by the board of excise, and notice given to the relatera that, upon complying with the rule established by the respondents, the license applied for by them would be issued ; such rule being, in brief, that the board of excise required that, before the issuance of a license for a new place, such as the relators made application for, they must surrender a current or existing license.

This application is made under the provisions of chapter 481 of the Laws of 1893, which is entitled “An act to amend chapter 401 of the Laws of 1892, regulating the sale of intoxicating liquors.” That act provides that:

“Whenever a board of excise, in,cities of over 30,000 inhabitants, shall have determined to deny an application for a license, or a board of excise in other cities, or in any town, shall have determined to deny an application for a hotel or an innkeeper’s license m such other city, or in a town, such board shall file in its office, with such application, a statement of the reasons for such determination, and shall, if so requested, furnish the applicant or applicants a copy of such statement, and of the resolution entered upon its records expressing such determination. Such applicant or applicants shall have the right to a writ of certiorari to review the action of such board. The writ may be made returnable to and the cause heard by a city court, a superior court, a court of common pleas or a county court in the county, or the supreme court or a justice thereof, in the judicial district in which the premises sought to be licensed are situated. If the writ shall be granted, the board of excise to which it is directed shall, in its return thereto, include copies of all papers on which its action was based, and a statement of its reasons for refusing to grant such application. If such court shall, upon the hearing, determine that such application for a license has been by such board arbitrarily denied, or denied without good or valid reasons therefor, such court may make an order commanding such board of excise to grant such application and to issue a license to such applicant "upon the payment of the proper license fee.”

A certiorari has been issued pursuant to said act, and return has been made by the board of excise of the record of the proceedings upon which the action of the board was based. In such return the respondents deny that they have wrongfully refused to issue the license or withheld the same from the relators, and that they set forth a copy of the rule passed May 15,1893, and amended on November 3, 1893, in the preamble to which it is, in substance, stated that, by a rule heretofore adopted, the board refused to increase the number of licenses for saloons where liquors are sold to be drank on the licensed premises, and provided that a new saloon should not be licensed unless an existing licensed saloon was closed, and that the result of the passage of that rule has been that the number of saloonkeepers' licenses has been materially decreased, while the revenue therefrom-has increased, and that the policy thus adopted has been received by nearly all classes of citizens with approval, and has received the unqualified support of the municipal authorities for its enforcement. In said preamble it is also stated that, since the enforcement of the above rule, there has been a very large increase in the number of storekeepers’ licenses, which only license the sale of strong and spirituous liquors, etc., not to be drank on the licensed premises; that said licenses have been obtained for a much less fee than those issued to saloonkeepers, and that such increase tends to defeat the purpose for which the restriction upon the number of drinking places was made, etc. It was therefor resolved that for all storekeepers’ licenses issued on and after May 15, 1893, to sell strong and spirituous liquors, etc,, not to be drank on the licensed premises, the license fee shall be $200, and that the board of excise will not grant any increase in the number of storekeepers’ licenses beyond, the number now licensed, and that a storekeeper’s license will not be issued for a new place except upon the closing of a place for which a storekeeper’s or saloon license exists, and the surrender of such license for cancellation.

It has been frequently held that a license to sell liquor is not a matter of right, and. that a large discretion is necessarily vested in the excise board in determining whether to grant or refuse an application therefor. People ex rel. Decker v. Waters, 4 Misc. Rep. 1; 53 St. Rep. 720; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Ex parte Persons, 1 Hill, 655; People v. Norton, 7 Barb. 477; People v. Jones, 54 id. 315; People v. Wright, 3 Hun, 306. It has also been held, under the act of 1893, that, upon the refusal of an excise board to grant a license to sell liquor, the court will not, on certiorari, review the facts and reasons which influenced the excise board, but will confine its review to the question of whether, in refusing the license, the board committed an error of law. People v. Waters, supra; People ex rel. Jones v. Bennett, 4 Misc. Rep. 10; 53 St. Rep. 724. Upon the facts presented by the papers, I do not think that an order should be made commanding the.board of excise to grant the application of the relators upon any other conditions than those upon which it has already been granted, to wit, upon the relator’s complying with the rule in question. It will be seen that the act of 1893, above set forth, only authorizes the court to interfere where it determines, upon a hearing, that the application has been arbitrarily denied, Or denied without good and valid reasons. It cannot, it seems to me, be maintained that the rule which is set forth in the return of the excise commissioners is an arbitrary one," or that the commissioners were not justified in passing it, and making it a condition of the granting of an additional storekeeper’s license.

I therefore discover no reason for reviewing or reversing the action of the commissioners, and the writ of certiorari heretofore issued must be quashed. ....


author: WARD, J.

text:
    Josephine S. Parker, App’lt, v. Anna G. Selye, Resp’t.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March, 1896.)

    I. Abatement—Another action pending. n
    The complaint, in this action, was held not to show on its face that another action was pending 'between the parties for the same cause.
    SB. Same,
    A complaint is not demurrable, as showing that another action is pending, merely because it shows that the same cause might have been tried in a pending suit.
    3. Same.
    In such case, the demurrer, to be successful, must establish the fact, from the face of the complaint, that another action is pending for the same cause between the samé parties.
    4. Lis pendens—Application.
    Section 1671 of the Code has no application to a party to an action who has been duly served with process therein.
    Appeal from a judgment, sustaining a demurrer to the complaint, on the ground that it showed that another action was pending between the same parties for the same cause.
    Quincy Van Voorhis, for app’lt; William F. Cogswell, for resp’t.
   WARD, J.

Lewis Selye, of Rochester, N. Y., deceased, was the owner of about thirty-two acres of land in the city of Rochester, of great value. He died intestate, leaving, as his heirs at law, his granddaughter, Josephene S. Parker, the plaintiff and appellant here, and his son, De Villo W. Selye; but the property was largely incumbered by various mortgages which the deceased had executed. The complaint in this action alleges, in substance, that on the 16th of February, 1893, the plaintiff commenced an action in the supreme court against the. said De Villo W. Selye and the defendant, Anna Selye, for the purpose of asserting that plaintiff’s rights in the said real estate, and having it adjudged that she was the owner of an undivided half thereof; that such action was brought to trial on the 18th day of May, 1894, and an interlocutory judgment was entered in said action, by which it was adjudged that title to the premises inured to the benefit of Selye and the plaintiff as tenants in common ; that on the 15th day of December, 1893, a deed from De Villo W. Selye to bis wife, the defendant here, of twenty-one building lots, parts of paid premises, was placed upon record in Monroe county clerk’s office. The complaint refers, as a part of it, to the complaint in the original action, and to the judgment roll in that action, and “ that said complaint and notice of pendency of the said action were filed in the clerk’s office of Monroe county on the 16th day of February, 1893.” The plaintiff succeeded in such action, and an interlocutory judgment was entered therein, adjudging her to be entitled to an undivided one-half of the property, and requiring the said De Yillo W. Selye to account for the proceeds of that portion of the property which he had sold under a power of attorney from the plaintiff, and that an accounting be had before Arthur E. Sutherland as referee. By reference to the complaint in the original action, it appears that the plaintiff in this action was the plaintiff thereiq, and that De Yillo W. Selye, Anna 0. Selye, his wife, and Selye Park Building-Lot Association were the defendants. No relief was sought therein against the defendant in this action, nor any claim made against her, and, indeed, she is only mentioned in the title of the action as the wife of De Yillo W. Selye; but the decision of the court and the judgment in the former action directed that she should execute, in conjunction with her husband, and deliver to the plaintiff, a deed of conveyance of all that portion of the premises which had not been conveyed pursuant to contracts of sale theretofore. The complaint in this action further alleged that the defendant now claims that the said! lots were conveyed to her by De Yillo W. Selye prior to the commencement of said action [the fiast action], and that therefore they are not in any manner affected by said action or said judgment.” The relief demanded in this actiqn is that the real estate described in the deed to the defendant be subjected to the judgment in the first action, and for such further relief as the court might grant.

The demurrer, to be successful, must establish the fact, from the face of the complaint, that another action is pending for the same cause between the same parties. Code, § 488, subd. 4. The first action is undoubtedly pending as to the defendant De Yillo W. Selye, as only an interlocutory judgment has been obtained therein, and an accounting ordered, preparatory for final judgment, which must be obtained before the action can be regarded as terminated. The parties in the first action were the plaintiff in" this, the defendant therein, with her husband^ and one other defendant. So far as the parties here are concerned, they may be regarded as the same parties, though not all of the parties, in the first action. The difficulty with the demurrer lies in the fact that it does not appear, upon the face of the complaint, -that the present action is for the same cause as the first. The first action, as we have seen, was aimed at the husband, De Yillo W. Selye, to compel him to account for the interest of the plaintiff inrthe property ; and in that action no relief was sought by the complaint therein against the defendant here. It is true that the decision of •the court and the judgment direct that she shall unite with her husband in the conveyance, as above stated, but there is nothing in that judgment which grants or anticipates the relief sought in this action. The relief here sought is to bind the defendant, who "claims to be the grantee of her husband of a portion of the lands in controversy, by the judgment in the former action. The deed under which the defendant here claims, was recorded subsequent to the commencement of the first action, and no mention thereof appears in the complaint in that action, and the rights of the defendant under said deed could not be determined iñ that action without an amended or supplemental complaint therein, alleging the fact of the giving of such deed and the fraudulent character of the transaction ; and there is no rule of law which requires a party to file a supplemental complaint. It is not compulsory. Geery v. Webster, 11 Hun, 430; Cordier v. Cordier, 26 How. Prac. 187. The rule in equity is that it must appear that the whole effect of the second suit be attainable in the first (Bradley v. Bosley, 1 Barb. Ch. 125), and this rule is founded in reason (Geery v. Webster, supra; In re Hood’s Estate, 27 Hun, 579, and cases cited).

The learned counsel for the defendant, upon the argument, seemed to rely upon the allegation in the complaint of the filing of the complainant and the notice of pendency in the first action, as above quoted, and claims that, under section 1671 of the Code of Civil Procedure (which provides that “ the pendency of the action is constructive notice, from the time of so filing the notice, only to a purchaser or incumbrancer of the property affected thereby, from and against a defendant with respect to whom the notice'is directed to be indexed, as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action ”) the defendant was bound by the proceedings in the first action. It will be seen, by this section, that the defendant is only bound to the same extent by this notice that she was bound by the proceedings in the former action ; and, fas those proceedings did not embrace the deed in question, or the controversy arising thereunder, this notice does not aid the defendant. Besides, this notice only, affects a purchaser or incumbrancer from a defendant with respect to whom the notice is directed to be indexed, as prescribed in section 1672 of the Code; and by that section the .clerk must index the name of each defendant specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff. The complaint contains no allegation that this was done, or that- the indexing was against the name of DeVillo W. Selye, the defendant’s grantor. Indeed, this section of the Code (1671) has no application to a party to an action who has been duly served with process therein. A party has notice, from the complaint, of the purpose of the action. This notice is merely a statutory substitute for actual ¡notice to the subsequent purchasers and incumbrancers. Hall v. Nelson, 14 How. Prac. 32.

The question remains whether the relief sought in this action could have been maintained in the first, so far as it appears from the complaint in this action; and as we have reached the conclusion that it could not, it follows that this action is properly maintained, and the judgment sustaining the demurrer should be reversed, and with costs of this appeal and of the special term, with leave to the defendant, upon the payment of such costs, to answer the complaint within 20 days after the service of the order herein upon the defendant.

All concur.


author: BOOKSTAVER, J.

text:
    In the Matter of John Schomaker.

      (New York Common Pleas, Special Term,

      Filed December, 1895.)

    Excise—License.
    A refusal by the board of excise to grant a hotel license will not be disturbed, where there is evidence from which it cannot be said that they acted arbitrarily, or without good and valid reasons, in refusing the license on the ground that there was no public necessity therefor, and that applicant was not a fit and proper person to be entrusted with the license. The power to review their action is limited to this question.
    Certiorari to review the action of the board of excise in refusing a license.
    David McClure and F. J. BischoE, for relator; Julius M. Mayer, for resp’ts.
   BOOKSTAVER, J.

On the 24th of September, 1895, the relator made application to the board of. excise for an hotel license for the premises Nos. 57 and 59 Lexington avenue. On November 13, 1895, a hearing was had by the board upon the application, and on the same day it was rejected by the unanimous vote of the board, which assigned the following grounds for such rejection:

“The application of John Schomaker for an hotel license for the premises Nos. 57 and 59 Lexington avenue is rejected, and a license refused, for the reason that, considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which the license is sought, the board of excise is satisfied that there was no immediate public necessity or convenience to be served in granting such license at this time. On the further ground that said place is not a fit and proper place to be licensed, reference being had to the minutes of the board showing that an hotel license issued for this place was revoked by the board on April 18, 1895, upon complaint made and hearing had, alleging that the former licensee had permitted the said licensed premises to become disorderly, and the resort of disorderly and immoral persons to visit"for unlawful sexual intercourse, and for lewd, obscene, and indecent purposes. - For the additional reason that the board of excise is satisfied, from the records of the board and the testimony taken upon the hearing had before the board, that said applicant is not a fit and proper person to be licensed, a license issued so him for the premises No. 755 Sixth avenue having been revoked.”

Thereafter a writ of certiorari was obtained by the relator to review the action of the board, but upon such a review the court can only inquire whether the determination of the board of excise has been arbitrary, or made without good and valid reasons. Laws 1893, c. 480,•§ 24. In othei words, the court can only inquire into the question as to whether or not fair and debatable grounds exist to form the foundation of a discretion which is to be ekercise by the board. People v. Murray, 72 St. Rep. —; In re Bloomingdale, 73 St. Rep. —; People ex rel. Jones v. Bennett, 4 Misc. Rep. 10; 53 St. Rep. 724; People ex rel. Decker v. Waters, 4 Misc. Rep. 1; 53 St. Rep. 720. And therefore it differs from certiorari to review the action of the board of police upon charges preferred (People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72), or the board of excise in revoking a license upon charges made. In the latter class of cases the court, upon certiorari, must look into the evidence, and if it finds there is a preponderance of evidence against the determination of the commissioners then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of the jury as against the weight of evidence, and also to reverse if manifest error in law has been committed to the prejudice of the party accused. But in a case like this the only questions to be considered are those above stated. In fact an applicant for a license has not any statutory or legal right to a hearing, and the hearing, if granted, is a matter of custom and courtesy. The excise law provides for a hearing only in cases enumerated under section 28, c. 480, Laws 1893, upon which a complaint must be made, and upon which a revocation of a license may be had. On the other hand, in the granting of a license it is the right and duty of a board of excise to make all the in vestigations within its power. To that end its members may personally- inspect the place sought to be licensed, may of their own motion investigate the character of the applicant, make all inquiries of every kind which are necessary for their informanon,, and when they grant a hearing that hearing is had solely for the purpose of giving them information. Upon such hearing they are not, 1 apprehend, bound by the strict rules of evidence which are applicable in the cases of a hearing had upon copaplainb made under section 28 (People v. Murray, 42 N. E. 725, in which the court of appeals affirmed the decision of the general term of the supreme court [34 Supp. 426]), and for the purpose of investigation may refer to all the records in its possession irrespective of whether the application is made during the tenure of office of any particular commission. It is proper therefore, for the return to the writ of certiorari to contain all of such records and all of the acts of the excise board which were before the board at the time of considering this application, and upon which they acted.

Upon the hearing of the 13th of November, 1895, a number of witnesses were called on behalf of the applicant all of whom testilled as to his standing and character. Some of them had been his landlords, and others had been engaged expressly in investigating his conduct, and from their testimony I do not hesitate to say that I believe him to be a man of good character. But the statute does not prescribe that the person shall be a man of moral character, or that his character or reputation must not be such as to subject him to contumely among his fellow men, but whether he is a fit and proper person to be intrusted with a license. And even in this respect the court is not to determine whether, in its judgment, the applicant is a fit and proper person, or whether the court, acting as a board of excise, would have granted a license to him; but the question rather is whether there was any reasonable ground on which one public officer might differ from another as to the fitness of the applicant to be a licensee of the board. And in arriving at a determination on this point they are not confined to the.testimony given by the relator himself, or on his behalf, but may inquire into all the facts and circumstances relating to him and his application. In this case the relator had been convicted before it of keeping a disorderly house, and on the face of the application,- as returned to us, th.is is admitted under his own signature to his application. It is true that the relator claimed that the note in red ink made upon the application, to the effect that the relator was the owner of the property at the time of the revocation, was an error, and ought not to effect the conclusion to which I would otherwise arrive. -It was further claimed that it was not made by the relator or any one on his authority, but was simply an unauthorized note, made by the clerk of the commissioners. Now, the fact as it appears from the return is that the license for the premises No. 755 Sixth avenue had been revoked while the license stood in the name of the relator, but he claimed that at the time of such revocation he was no longer its owner, nor in any way connected with the property, and that his connection with it had ceased some mouths 'before the revocation. It seems to" me that the proper course for the relator to have taken in order to excuse himself from all responsibility for the conduct of the house in question was to have informed the board of excise or the police department of the sale of the licensed premises, or have had the license transferred to the purchaser thereof, under the authority of People v. Meyers, 95 N. Y. 223. Until this was done, the licensee was liable for the acts of his agent or any other person in charge of the premises, or any person holding himself out to the world as such with the knowledge of the licensee. The relator, therefore, stood before the board of excise upon this question in one of two positions: either he knew that the Sixth avenue premises were being conducted as a disorderly house, or he had such little regard for the privilege of a license to sell liquor that he paid no attention to the manner in which those premises were conducted, and subjected himself to risk of revocation. In either dilemma the board- may well have concluded that one acting in such a manner under such circumstances was not one to be safely trusted with a license. But it-further appears that the relator has been for many years an hotel keeper, and was presumably well acquainted with the business and its vicissitudes. Upon the hearing he testified that he entered into a contract involving the sum of $35,000, and yet that he did not know that a license for the premises which be thus undertook to obtain possession of had been re-voiced, and that he did not know the character of the business which had been carried on there, although the place had been a notoriously disorderly house. Moreover, he testified he made no inquiry to find out the reason of the revocation of the license of that place. It seems to me that the board might well offset these facts against the testimony of the witnesses produced by the relator.

Again the reason assigned by the board for not granting the license that the place was not a fit and proper one to be licensed, reference being had to the minutes of the board showing that an hotel license issued for that place had heretofore been revoked by the board on the ground that the former license had permitted the premises to become disorderly and the resort of disorderly and immoral persons, etc.; and the return shows that when the board revoked the former license it had abundant grounds for doing so. In my opinion, however, the fact that the premises had at one time been used as the resort of disorderly and -immoral persons does not stamp upon the real property permanent disability by reason of the faults of a tenant no longer in occupancy or control of the premises. It, however, justifies the board in exercising the utmost caution in granting a license to a place which had thus been occupied and used, even without the consent of the landlord. And some regard must be had to such a fact in determining whether the board acted arbitrarily, and without good and valid reasons, in arriving at a particular conclusion. As shown by the diagram annexed to the report of Inspector Welch, there was at the time this license was refused a full liquor license at No. 52 -Lexington avenue, almost opposite the premises in question; at the northeast corner of Lexington avenue and Twenty-Fourth street there was an hotel license; and, as shown by the extracts from the record map of the board, there were in the vicinity together twelve licensed places. The necessity which calls upon the board to grant a license must be a public necessity. The fact that twenty-five or thirty people or one-hundred desire that liquor be sold on the premises in which they live argues' nothing, and does not make it a public necessity; nor does the fact that the place is now used as an hotel create such a necessity. If this were the case, then the board might be required to grant a license to any of the large boarding houses, apartment houses, or other places of dwelling which exist in the thickly populated portions of-the city. If, in the judgment of the board, the person applying for the license was not a fit and proper person to be entrusted with a license, if there was no public necessity for it, it would seem to follow that the rights and interests of the neighboring property owners and residents would be injured. It seems to me, under all the circumstances of the case, that the board was not wholly without grounds for the conclusions to which it arrived, and that there was such evidence before it that I cannot say its members acted arbitrarily, and without good and valid reasons, in coming to the conclusion they did. The application will, therefore, be denied, with costs.

Application denied, with costs.


author: PRYOR,

text:
    James Garvey, as Receiver, etc., Pl’ff, v. United States Horse and Cattle Show Society, Def’t.

      (New York Common Pleas, Special Term,

      Filed March, 1895.)

    Costs—New tbial.
    Upon the denial of a motion for a new trial, on a case settled, the successful party is entitled to costs, as of right, and these costs are the same as on appeal.
    J. B. Hands, for app’lt; Jay & Candler, for def’t.
   PRYOR,

disallowance of costs to defendant was improvident. Upon denial o£ a motion for a new trial on a case settled, the successful party is entitled to costs as of right, and those costs are the same as on appeal. The cases cited by plaintiff sustain his contention, but they are contrary to Atkinson v. Truesdell, 28 St. Rep. 585, and Wilcox v. Daggett, 15 N. Y. Wkly. Dig. 208, and to the adjudication of this court in Perkins v. Quarry Co., 32 Supp. 236.


author: BISCHOFF, J.

text:
    Maria L. Winterson, Pl’ff, v. Hector M. Hitchings, Def’t.

      (New York Common Pleas, Special Term,

      Filed January, 1896.)

    Set-off—Judgments.
    Where the awards are made in different actions, the attorney’s lien has the superior equity, and the set-off between the parties will not be allowed to defeat it. So held, where, against a judgment for costs, assigned by the judgment plaintiff to his attorney for services, the judgment defendant seeks to set off a judgment in another action against such judgment plaintiff, assigned to such defendant.
    Action by Maria L. Winterson against Hector M. Hitchings, in which there was a judgment in favor of plaintiff for certain costs. Defendant moves to set off such judgment against a judgment against plaintiff rendered in another action, and assigned to defendant
    Hector M. Hitchings, for the motion; E. E. & E. G. Bullard, opposed,
   BISCHOFF, J.

Defendant is the assignee of a judgment against the plaintiff, which was recovered in the city court of New York.. After the recovery and assignment of the judgment this action was instituted, and therein the plaintiff recovered the costs of the defendant’s demurrer and appeal. Defendant now asks that the costs be set off against the judgment of the city court, and the plaintiff objects because she has assigned the costs to her attorney of record, and because he has a lien thereon for his services in this action.

The motion should not be granted. Unquestionably judgments between the same parties, though had in different courts, may be set off against each other. Brewerton v. Harris, 1 Johns. 145; Cooke v. Smith, 7 Hill, 186; Simson v. Hart, 1 Johns. 91; 14 id. 75; Schermerhorn v. Schermerhorn, 3 Caines, 190; Ewen v. Terry, 8 Cow. 126; Kimball v. Munger, 2 Hill, 364. So a set-off may be directed in favor of the assignee of a judgment. Chamberlain v. Day, 3 Cow. 353; People v. New York Common Pleas, 13 Wend. 649; Turner v. Satterlee, 7 Cow. 480. But a motion for set-off is addressed to the discretion of the court (Alexander v. Durkee, 112 N. Y. 655; 20 St. Rep. 529), and should not be allowed if the equities of third persons intervene. Costs primarily belong to the party, but the attorney has a lien thereon for his services. To that extent the attorney is an equitable assignee of the costs awarded. Where the several awards asked to be set off against each other were made in the same action, the equities of the parties are superior to those of the attorney, and a set-off may be ordered; the attorney’s lien in such a case attaching only to the balance remaining in his client’s favor. Smith v. Chenoweth, 14 Daly, 166; Dunkin v. Vandenberg, 1 Paige, 622. Where, however, the awards were made in different actions, the attorney’s lien has the superior equity, and a set-off between the parties should not be allowed to defeat it. Zogbaum v. Parker, 55 N. Y. 120; Dunkin v. Vandenberg, 1 Paige, 622. Again, a party may assign prospective costs to his attorney for the latter’s compensation for services to be performed in the action ; and where such a transfer has been made, and the costs are awarded, the claim of the attorney should not be defeated by setting off against the costs a prior judgment recovered in another action and in favor of the party from whom the costs are due. Perry v. Chester, 53 N. Y. 240; Bradt v. Koon, 4 Cow. 416.

Since the award in this action was wholly for éosts, it operated, without anything more, as notice of the attorney’s lien (Marshall v. Meech, 51 N. Y. 141); but, if express notice is requisite for the protection of the lien, the plaintiff’s objections upon this motion are adequate in that behalf.

The motion is denied, with $10 costs.