author: Cullen, J. Dykman, J.

text:
    Cornelia A. Beveridge, as executrix, etc., of James Beveridge, deceased, vs. The New York Elevated R. R. Co., and The Manhattan Elevated R. R. Co.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    1. CORPORATIONS — CONTRACTS BETWEEN — NOT WITH INDIVIDUAL STOCKHOLDERS. '
    Wliere as part .of the consideration for the lease hy a corporation of its corporate rights and franchises to another corporation, the party of the first guarantees to the party of the second part, an annual dividend to an amount stated in the lease. Held, that the agreement ran only to the corporation party of the second part, and not to the individual stockholders.
    2. Same — Voidable contracts binding until avoided.
    Where an agreement has been entered into between two corporations which is voidable, in the absence of fraud it is binding upon both parties, until some one aggrieved, either one of the contracting corporations or a stockholder therein seeks to avoid it.

      8. Same — Stockholder cannot being action‘until demand made by HIM THAT THE CORPORATION PROCEED THEREIN.
    Before the commencement of an action by a stockholder in a corporation which is party to a contract, to compel performance of the contract, a demand must be made by him that the corporation bring the action.
    Appeal from a judgment entered at special termof Kings County. •
   Tbe following is tbe opinion of tbe court below:

Cullen, J.

Despite tbe exhaustive arguments of plaintiff’s counsel, I still think that tbe agreement of tbe Manhattan Elevated Railroad Company ran only to the-New York Elevated Rahway Company and-not to tbe individual stockholders of tbe latter company. In tbe various litigations arising out of the leases between these companies tbe decisions are uniform in support of this construction. Tbe plaintiff, therefore, has no contract for a dividend with either defendant company. In this respect tbe case wholly differs from that of Boardman v. Lake Shore, etc., Railroad, 84 N. Y., 157. In that case there was an express agreement to pay tbe dividend and tbe suit was brought on that agreement. In tbe view taken of tbe lease of tbe New York Company’s road, there is no such element in this case. This action, therefore, cannot be maintained as one to recover dividends, except to tbe extent that dividends have been declared by tbe company, to wit, at tbe rate of six per cent, yearly.

But tbe plaintiff contends that, waiving tbe claim that there was a direct guaranty of dividend on the stock, be is entitled to compel tbe enforcement of tbe contract by tbe Manhattan Company, tbe New York Company having, after demand made by him, refused to enforce its claim for the rent reserved in tbe original lease. This claim was .certainly litigated on tbe trial, and, I think, is within tbe pleadings. Tbe right of tbe New York Company to collect from tbe Manhattan Company tbe reserved rent of 1650,000, during tbe period over which plaintiff’s claim extends, depends upon tbe agreement of October, 1881, modifying tbe terms of tbe original lease of tbe road. It is contended that this modification is invalid: First, because tbe agreement to that effect was made by tbe directors without tbe consent of tbe stockholders ; second, because it was made in fraud of tbe interests of the company. In this action tbe parties put in evidence tbe record and judgment in the action brought in tbe Common Fleas of tbe City of New York by tbe Metropolitan Railroad Company against the defendants in this suit. In that action it was adjudged that tbe agreements of October, 1881,-were null and void, and tbe same were set aside as to all the parties thereto. The several companies then became restored to their contract relations under tbe leases of May, 1879.

The plaintiff claims that by the avoidance of the October agreements the New York Company became entitled to recover of the Manhattan Company the rent originally reserved during the whole period the road of the former company was held by the latter. This proposition is the foundation of the plaintiff’s contention. I think it is erroneous. The judgment in the Common Pleas establishes that the agreement of October, 1881, was voidable, not that it was void; and such a voidance was made at the election of the Metropolitan Company only; the New Company asserting the validity of the agreement. The question of the validity of the execution of that agreement by the New York Company was not and could not be passed on in that action. This judgment there would have necessarily been the same, had all the New York Company stockholders assented to the agreement. From the time of that judgment the agreement became inoperative between all the parties; but, as between the two defendants in the action, in my opinion, only because the assent of the Metropolitan Company to the proposed new rentals was an integral part of the consideration for the reduction of the rent on behalf of the New York Company. Until the rendition of that judgment, however, the. New York Company received the whole benefit of the agreement; and had the agreement been properly executed by the New York Company, plainly the New York Company could not have been heard to complain as long as the Manhattan Company had fully performed the covenants on its part. The judgment in the Common Pleas suit, therefore, of itself establishes no claim in favor of the New York Company for the amount of the reduction in the rentals. The principle, however, decided in that case, applies as well to the action of the New York Company as to that of the Metropolitan, therefore the act of the Directors of the New York Company was voidable. But it does not appear that such action has ever been avoided. The corporation has never elected so to do, nor has any stockholder brought an action for that purpose; on the contrary, the mass of the stockholders have acquiesced in it. As early as January 31, 1882, a majority of the stock of the New York Company had been acquired by the Manhattan Company under the terms of the modified agreement, and prior to the commencement of this action, 58,000 shares out of a total of 65,000. I do not say that the transfer of the majority of the stock of itself is sufficient substitute for the action of the stockholders at a regular meeting, nor even that a minority of the stockholders were under the absolute controll of the majority; but I think it clear that, if this agreement was voidable only, then, in the absence of fraud, until some one aggrieved — either the corporation or a stockholder — sought to avoid it, it was binding upon the parties. The case qf Kent v. Quicksilver Mining Co., 78 N. Y., 159, is a direct authority to that effect. This case differs largely from that of the Metropolitan Company. There the action of the complaining stockholders was prompt and vigorous to avoid the alleged wrong. Here, while a small number of stockholders did not acquiesce in the modification of the lease, their dissent evidently was based on the claim that they had a direct contract with the Manhattan Company, which could not be avoided by action of their own corporation, and .not on the ground that the • directors could not, without the assent of the stockholders, act for that corporation.

On the argument it was claimed that the action of the New York Company directors was fraudulent, but I am not asked to find that fact by the plaintiff’s requests. There is no evidence before me in the subject matter, except the findings in the Common Pleas action, and a statement of the holdings of the directors in the stock of the two companies. The evidence is wholly insufficient for' the purpose. Whatever criticism may be made as to the action of the Board of Metropolitan Directors in making the October agreement, those criticisms do not apply to the action of the New York directory. The directors of the latter company represented the substantial holdings of the stock. There were no common directors of the two companies. The lessee company at the time was insolvent. While the rent was reduced the New York Company would receive substantial benefit from the new agreement. The rent of the New York Company was thereafter to be first paid out of the joint earnings of both roads. True, the Manhattan Company also was benefited by the modification of the lease, but that does not necessarily show that the interest of the New York Company was sacrificed. In fact, the complaint of the Metropolitan Company was directed more against the advantages given by the October agreement to the New York Company, than to those given to the Manhattan Company. It is plain that such an agreement cannot be held fraudulent on its face without evidence to sustain the allegation. It follows that the New York Company had, at the time of the surrender of its road by the Manhattan Company, no valid claim against the latter company. It is therefore unnecessary for me to examine the validity of the release subsequently given. There was no wrong in the New York Company accepting the surrender of its road. As to the validity of the agreement by the New York Company, made subsequent to such surrender, to pay dividends in certain contingencies to the stockholders of the Manhattan Company, the validity of the lease to the Manhattan Company and the merger agreement, I express no opinion. I should be loth to say that the holders of a majority of the stock of a company can make a bargain with itself, if it should appear that such action was dictated by considerations of personal advantage to the stockholders, and such action was plainly prejudicial to the interests of the other stockholders. But these questions do not arise in this case. If I were to pass on tbem it would be without legal effect.

Arnoux, Mitch Woodford, for app’lt; JE. B. Oowles, of counsel. Davies Mapallo, for respondent; A. J. Vandepoel, of counsel.

The demand of the plaintiff in the New York Company, which alone gives him the right to maintain this action, was made on May 22,1884. The only question that can be determined here is the existence of a claim of the New York Company against the Manhattan Company at that time. If the plaintiff is aggrieved by the subsequent action of his corporation, he must bring a direct suit for relief against it.

The complaint must be dismissed as against the Manhattan Railway Company with costs, and the plaintiff have judgment against the New York Company that it transfer its stock, and for the amounts of the dividends declared at the rate of 6 per cent, per annum, with costs.

Dykman, J.

The judgment in this action should be affirmed on the opinion of the court below.

BakNAEd, P. J., and Pratt, J., concur.


source: Caselaw Access Project

author: Barnard P. J.,

license: Public Domain

text:
    Kate Feeney, Resp’t; vs. The Long Island R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    Railroads — Gates at crossing — Duty to persons crossing track in management of.
    The defendant operates a road in the city of B., which is crossed by a street, and the defendant is by a city ordinance required to keep gates at the crossing. The defendant did operate them. The plaintiff crossing defendant’s tracks on one occasion was struck by the descending gate and injured. Held, that the defendant owed the duty to those who passed its tracks to manage the gates so as to be a protection against railroad trains and also to so raise and lower them as to avoid injury to those who crossed its tracks after a train had passed.
    Appeal from a judgment entered upon a verdict at the Kings County Circuit and from an order denying a motion for a new trial on the judge’s minutes.

      Hinsdale & Sprague, for appellant; Charles J. Patterson, for respondent.
   Barnard P. J.,

The defendant operates a road in the City of Brooklyn. Utica Avenue crosses the road and the defendant is bound by a city ordinance to keep gates at the crossing. The defendant did keep and manage gates there, one at each side of the track.

The plaintiff arrived at the gates on the 8th of November 1885 and found them closed. When the obstruction was removed the gates were raised and the plaintiff passed over. After she got over the tracks the gateman lowered the gate so rapidly that the gate struck the plaintiff on the head and injured her quite severely. The ease seems a plain one on these facts. The only issue made was made by the gateman, and he testified that he struck no one to his knowledge. The plaintiff is supported in her statement by Thomas Mowers, an intelligent and disinterested witness. The defendant owed a duty to those who passed its tracks to manage the gates so as to be a protection as against the railroad trains and also to so raise and lower the gates as to avoid injury to those who crossed its tracks after a train had passed. No doubt, in a populous city with many persons constantly passing its tracks, it is difficult to do this, but' the jury have said that this accident could with prudence have been avoided.

The judgment should therefore be affirmed with costs.

DykmAn and Pratt J., concur.


author: Dykman J.

text:
    Charles H. Hunter, Resp’t; vs. New York, Ontario & Western R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    1. NEGLIGENCE — ACCIDENT — MASTER AND SERVANT — QUESTIONS FOE JURY —Nonsuit.
    The plaintiff, while acting as brakeman on defendant’s road, sustained injuries in passing through a tunnel. The roof of the tunnel at a distance from the entrance is rendered lower than at the entrance, by a supporting arch of about three feet in thickness. Pendant from a rod across the track at the entrance of the tunnel were strips of metal called tell-tales, designed as a warning of the approach to the tunnel and danger incident to passage through the same. The plaintiff was riding on top of a freight car, saw the tell-tales at the approach to the tunnel, but remembered nothing further of the accident, and there was no direct proof of the manner in which he received his injuries. He was found injured at a distance beyond the supporting arch. The plaintiff testified that he was not warned in any manner of the presence of the arch. Held, that it was a question of fact for the jury whether the plaintiff received his injuries by contact with the brick arch in the tunnel, and as to the negligence of the defendant in the construction of the arch.
    2. Master and servant — Servant does not assume risks of employment WHEN NOT APPARENT.

      Held, that the case was not controlled by the cases which hold that the servant who accepts a service assumes the risks and perils incident to the use of property, and structures of the defendant so far as they are apparent, for the reason that the brick arch was not apparent from an external view, and there was no proof that the plaintiff saw it or had notice of its existence.
    This action was tried before Mr; Justice Cullen and a jury at tbe Orange County Circuit, in June 1886. A verdict was rendered in favor of .the plaintiff for $6000. At the close of the plaintiff’s case and again when the case was closed the defendant moved for a non-suit, and upon the return of the jury moved to set aside the verdict and for a new trial; all of which motions were denied. This appeal is taken from the judgment entered upon tbe verdict, June 24th, 1886.

      T. A. Read, for resp’t; John B. Kerr, for app’lt.
   Dykman J.

This is an action for negligence in winch, the plaintiff has obtained a judgment from which the defendant has appealed, but there is no appeal from an order denying the motion for a new trial. Our examination of the case is therefore confined to questions of law, and as there was no exception to the charge on the part of the defendant, and no error committed in the reception or exclusion of testimony, the motion for a non-suit presents the only question for our review on this appeal.

The plaintiff was in the service of the defendant in the capacity of brakeman, and sustained his injuries while passing through a tunnel on the railroad. The tunnel is seven eighths of a mile in length, and was originally about twenty feet in height, through its entire length ; but about seven years ago, a sustaining arch of brick was inserted, commencing about two hundred feet south of the north portal of the tunnel, and extending south about eighty-five feet.

That arch was about three feet in thickness, and so depressed the top of the tunnel, and left three feet less of head room or space between the top of a car and the top of the passage way. Pendant from a rod extending across the track on the north end of the tunnel were narrow strips of metal, called telltales or ticklers. They hung down a few inches lower than the obstruction caused by the arch in the tunnel, and were designed as a warning of the approach to the tunnel, and of the dangers incident to a passage through the same. Similar telltales were placed on each side of all the bridges and tunnels on the defendant’s road.

The plaintiff was riding on the top of a freight car, and was sitting on the front portion as he entered the north portal. It was a box car, and he was seated on what is designated as the running board. He saw the telltales outside of the north portal, but remembered nothing further of the accident, and there was no direct proof of the manner in which he received his injuries. He was found on the track in the tunnel between two and three hundred feet south of the south end of the brick arch. His ankle was crushed, and there was a small cut on his head, and he was unconscious, and remained so for many days.

The plaintiff testified that he had no knowledge of the brick arch in the tunnel, and had not been informed that the bridges and tunnels were too low to admit the passage of men on the tops of the cars, and that in approaching the tunnel, it looks as though you could stand up without any trouble and go through.

He further testified, that the telltales were an indication to him that the was approaching the tunnel, and that he did not know what warning they were intended to convey farther than that, or what the object was of giving notice of such approach.

It cannot therefore be said that the plain tiff had knowledge of the character of the structure from which he received his injuries, if they were' sustained by contact with the brick arch in the tunnel, and that was a question of fact for the jury.

The case is not therefore controlled by the cases which hold that the servant who accepts a service assumes the risks and perils inciden t to the use of the property and structures of the defendant so far as they are apparent, for the reason that the brick arch was not apparent from an external view, and there was no proof that the plaintiff saw it or had notice of its existence.

It cannot therefore be said that there was no evidence to ¡submit to the jury, on the contrary, it was the peculiar province ;of the jury to make suitable inferences and deductions from the •testimony and surrounding circumstances, respecting the manner of the infliction of the plaintiff’s injuries, and respecting .the negligence of the defendant in the construction of the arch, ■or the operation of its road after it was built, or its failure to ■give warning and caution to its servants respecting its existence, .and the danger it entailed, and all these questions were sub.mitted to the jury with suitable and proper instructions.

We cannot therefore find that there was no testimony to submit to the jury, or that the verdict is unsupported by the «evidence.

The judgment should therefore be affirmed with costs.

B ANN AND P. J., and Pbatt J. concur.


author: Dykman, J.

text:
    William J. Beard, Appl’t; v. Elbert Kipp, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14th, 1886.)
    'Venue — When okdeb changing, will not be vacated.
    Where the place of trial was changed for the convenience of witnesses and the defendant thereafter withdrew his answer, there is no reason for vacating the order changing the venue.
    Appeal from an order of Justice Cullen, refusing to vacate .-an order of Justice BabNABD, changing the place of trial in this .action, for the convenience of witnesses and refusing to send it .back to the county where it was brought.

      William J. G-ay nor, for appl’t; Travis-Smith, for resp’t.
   Dykman, J.

A motion was made in this action to change the place of trial from the County of Kings to the County of Westchester, for the convenience of witnesses, and it was granted, Thereafter the defendant withdrew his answer, and then -the plaintiff moved to vacate the order which changed the venue, that motion was denied, and the plaintiff has appealed from the order of denial.

There is no merit in the appeal: the withdrawal of the answer furnished no reason for the vacation of the order changing the venue. There may be witnesses on the part of the defendant in the assessment of damages, whose convenience should be consulted.

The order should be affirmed, with ten dollars costs, besides disbursements.

BarNAKD and Pratt, JJ., concur.


text:
    William Broisted, Plaintiff, v. Henry Breslin, Defendant.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886).
    JUGDMENT — CONFESSION OF — WHAT STATEMENT SUFFICIENT — CODE ClV. Pro., § 1274.
    . Where the statement of facts in a confession of judgment for money due, was that “ the defendant at different times borrowed of the plaintiff divers sums of money, and also purchased of the plaintiff horses, and on an accounting of their dealings together this day, there was found to be due from the defendant to the plaintiff, the sum of $2298, and for which amount this confession is made.” Held, sufficient to sustain the judgment entered in the action.
    Appeal by one William R. Potts, a judgment creditor of the administratrix of Henry Breslin (but not a judgment creditor of Henry Breslin), from an order entered on a decision made at Special Term, Kings County, denying a motion made on behalf of said Potts to set aside the above entitled judgment entered in favor of William Broisted (since deceased) upon the confession of said Henry Breslin since deceased.
    The confession was as follows :—
    “I do hereby confess judgment in this action, in favor of William Broisted, for the sum of two thousand, two hundred and ninety-eight dollars, and authorize judgment to be entered therefor against me.
    “ This confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts: The defendant, at different times, borrowed of the plaintiff divers sums of money, and also purchased of the plaintiff horses; and on an accounting of their dealings together this day, there was found to be due from the defendant to the plaintiff, the sum of two thousand, two hundred and ninety-eight dollars, and for which amount this confession is made.”
    (Signed), “Henry Breslin,
    Defendant.”

      Albert G. McDonald, of couusel for Broisted, exr., resp’ts; B. F. Edsall, for app’lt; Thomas Darlington, of counsel.
   Dykman, J.

This is an appeal from an order of the special term, denying a motion to set aside a judgment by confession on the ground of the insufficiency of the statement upon which it was entered.

Passing without decision, tlie very serious question which confronts the moving party, respecting his right to invoice the relief he desires, we have examined the statement by the light of such decisions as have been made in cases analogous to this and find it sufficient. It discloses the dealings and transactions from which the indebtedness arose, and then specifies the amount found due from the defendant to the plaintiff, upon an accounting between them, respecting, such dealings, and states in legal effect that the confession of judgment was for the debt justly due to the plaintiff, in view of all those facts.

Where the judgment is confessed for money due, as in this case, the statute requires a written statement which shall state concisely the facts out of which the debt arose, and show that the sum confessed therefor is justly due. Code, 1274.

While it is true that the statement hi this case fails to specify the times at which the horses were sold, or the money loaned, or what particular proportion of the debt arose from either transaction, yet such defects were held insufficient to invalidate the judgment in the cases of Freligh v. Brink, 22 N. Y., 419, and Harrison v. Gibbons, 71 N. Y., 58, and these authorities are sufficient to sustain the judgment in this action.

The attempt to establish actual fraud Avas a failure, and the appeal cannot prevail on that ground.

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

Barnard and Pratt, JJ., concur.


author: Barnard, P. J.

text:
    Caroline C. Blatz, Resp’t, v. Jacob Rohrbach, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886).
    Civil damage act — Laavs 1813, chap. 646 — 'WBat sufficient to entitle A RECOVERY OF DAMAGES FOR SUICIDE OF ONE AVH1LE INTOXICATED.
    Where the evidence showed that plaintiff’s husband arrived at his home about twenty minutes to eleven at night, very much intoxicated. That plaintiff seeing his condition, tried to quiet him, but failing to do so, took her baby and went up-stairs to bed, leaving her husband down-stairs, and in the morning he was.found hanging by the side of the closet door, having evidently committed suicide. • That the deceased had spent the evening at defendant’s saloon, playing cards and drinking beer, or other drink sold to him by the defendant. That defendant had been previously requested by plaintiff not to sell any more strong drink to her husband. Held, there was sufficient evidence to sustain the verdict in favor of plaintiff.
    Appeal from a judgment in favor of plaintiff entered on the verdict of a jury at the Westchester County Circuit.

      Charles H. Noxon, for resp’t; John S. Graber, for appl’t.
   Barnard, P. J.

The plaintiff’s husband arrived at his home in Mt.Yernon, on the fourth of March, 1885, at about twenty minutes to eleven P. M. His Avife, the plaintiff, tried to quiet him, as sbe testifies be was very much intoxicated. Sbe failed to do so, and in about an liour after be came borne, tbe plaintiff took ber baby and went np-stairs to bed, leaving ber husband below. It was not an unusual tiring for tbe busband to sleep down-stairs. In tbe morning be was found banging by tbe side of the closet door, having evidently committed suicide. The plaintiff brings this action against tbe defendant under 646, Laws of 1873, known as tbe Civil Damage Act. Sbe gave proof, tending to show that tbe defendant sold or gave away some two or three glasses of beer to ber busband on tbe night in question. A very sharp contradiction is made as to tbe condition of tbe busband when be left the saloon of tbe defendant, but in view of tbe fact that tbe busband arrived at tbe saloon at half-past seven, P. M., and played cards there, when tbe result, in some friendly way, entitled tbe players to drink; and in view of tbe fact that tbe habits of tbe busband were bad, tbe issue upon tbe intoxication was well found in favor of tbe intoxicated condition of tbe busband, by reason of liquor, whether beer or other drink, sold to him by tbe defendant.

Added to this, both tbe plaintiff and ber daughter were explicit in their statements, as to an extreme condition of intoxication of tbe deceased husband and father. Did this state of intoxication induce tbe suicide ? Tbe question cannot ordinarily have any direct proof. It must be inferred, and tbe case proven is that he was tbe father of ten children,- tbe youngest but a few weeks old. He was addicted to strong drink, but made a comfortable living for tins large and helpless family, as only two earned their own board. He bad formerly attempted suicide, but whether or not be was then sober or otherwise, does not appear.

There was found after tbe suicide, a paper containing tbe words, “ Give my watch to the boy,” and that bis brother-in-law, one Johnson, owed him $57. This is tbe case, and tbe jury have found tbe suicide tbe result of tbe intoxication, produced by tbe defendant. An appellate court cannot properly set aside tbe verdict. Neu v. McKechnie, 95 N. Y., 632.

There was no proof of insanity, and -it was unnatural, and therefore unusual, for a father with an undisturbed brain to deliberately leave a wife and so many helpless children behind him, under tbe circumstances surrounding tbe suicide. Tbe jury were told that to justify a verdict, they must find that tbe intoxication was to such an extent as to deprive tbe deceased of tbe natural use of bis faculties, and incapable of caring for himself ; and that was to be proven, and not derived from speculative opinion, and that tbe intoxication caused tbe act. Tbe damages are not excessive. There was proof tending to show a request by tbe defendant’s wife, while in charge of tbe bar, not to sell any more strong drink to the deceased busband of plaintiff. This notice was given by plaintiff, and every circumstance stated which, should have been heeded. The judgment should, therefore be affirmed, with costs.

Pe,att, J., concurs.


author: Learned, J.

text:
    People ex rel Oppenhiem, Resp’t, v. John Parr, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886).
    1. Libel — Expert evidence — Not a case por.
    In a prosecution for libel, witnesses were called for the people, who were asked whether, upon reading the article in question, they recognized any particular individual; and further, who was the person recognized, as referred to by the article. Both of these questions were duly objected to. Held, that the evidence was improper, the questions calling only for the opinion of the witnesses, and that this was not a case for expert evidence.
    2. Court op Special Sessions op Albany — Jurisdiction — Code Crim. Pro. § 68.
    The Court of Special Sessions of Albany has jurisdiction, among other things, of “ All misdemeanors not being infamous crimes, committed within the city.” Code Crim. Pro., § 68.
    3. Infamous crimes — Interpretation op language op Code Crim. Pro., §68.

      Held, that the words “infamous crimes,” in Code Crim. Pro., § 68, must apply to such crimes as were infamous at common law.
    4. Same — What constitutes an infamous crime.

      Held, that the better opinion is that it is the nature of the crime, and not the punishment, which determines whether it is an infamous crime, and •that an infamous crime is an offence implying such a dereliction of moral principle as carries with it a conviction of a total disregard to the obligation of an oath.
    5. Libel is not an infamous crime.

      Held, that publicity is the essence of the wrong of libel, that it does not necessarily involve deception or dishonesty, and is not in its nature an infamous crime.

      Hugh Reilly, for resp’t; Thomas R. Qonnor, for appl’t.
   Learned, J.

This was a prosecution for an alleged libel upon Leo Oppenbeim. His name was not mentioned in the libel, but it was claimed by the People that he was intended, and that he was pointed out by 'the words, “ The Pearl Street tailor,” and by the name “ Leo.”

On the trial a witness was asked on behalf of the People, “ When you read this article did you recognize its application to any particular individual? ” He answered “ I did.”

Then he was asked, “ Who was the person that you recognized that this article referred too?” And he answered “Leo Oppenheim.”

These questions were duly objected to and exception taken. Similar questions were put to two other witnesses; objections made, and exceptions taken.

This evidence was improper.

It was for the People to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim as referred to, was only the statement of their opinion, and this matter was not one for experts.

Their opinion must haye been based upon facts known to them. They should have testified only to such facts.

If this kind of testimony were proper, then the defendant could have called witnesses to testify that they did not recognize Oppenheim as the person referred to, but such testimony would be plainly improper.

This principle is distinctly decided in Van Vetchen v. Hopkins, 5 John., 211; Gibson v. Williamson, 4 Wend., 320; Maynard v. Beardsley, 7 Wend., 561, in the Ct. of Errors; Weed v. Bibbins, 32 Barb., 315; and by implication in Wright v. Page, 36 Barb., 441.

Two cases were cited by the People as sustaining the Court below; viz. People v. Croswell, 3 John., Cases 340, and Genet v. Mitchell, 7 John. 120. In the former no question or decision was made upon this point. The whole discussion is upon the right of a jury to determine the whole issue, and on the right of defendant to show the truth of the statement alleged to be a libel.

In the other case the court recognize Van Vetchten v. Hopkins as sound law. The testimony given by the witness had not been objected to, and was quite immaterial.

It is said by the counsel for the People that the Judgment should be reversed because there is evidence that defendant admitted to a witness that Oppenheim was intended, but we cannot say that the jury would have believed the evidence as to this admission, if it had not been fortified by the illegal evidence of the opinions of witnesses.

We are referred to the language of the court in Hayes v. Ball, 72 N. Y., 420, as supporting the position of the People. The question now under consideration was not involved in that case. It is very possible that in the case of verbal slander, if all the persons who heard the alleged slander testify that they understood the words in a sense entirely harmless, this may be a good defense. Because in that case the defendant has not conveyed to the mind of any person a charge or disgraceful statement in respect to the plaintiff.

But the present is a very different case. Here is a libellous publication. The attempt is not to show that it was understood by all readers in a harmless sense. But the attempt is to show that it is aimed at a particular person by the opinion of several who read it. It is unquestionably proper and important to show that fact. But it must be shown by circumstances surrounding the parties. The circumstances which induced' the belief in the minds of tbe witnesess that Oppenheim was the man intended would have perhaps produced the same belief in the minds of the jury. At any rate, the defendant was entitled to the judgment of the jury on that point.

The question is raised as to the jurisdiction of the Court of Special Sessions of Albany. It has jurisdiction, among other tilings, of “ all misdemeanors, not being infamous crimes, committed within the city.” Section 68 Code Crim. Pro.

The defendant claims that the publication of a libel is an infamous crime.

The repeal by Chapter 593, Laws of 1886, of section 31, title 7, chapter 1, part 4, R. S. has left us to the common law to determine what are infamous crimes. It is quite unfortunate that so important an exception should be expressed in words which have always been somewhat vague in their meaning.

The question what crimes were infamous used to be important principally because a conviction for any of such crimes excluded the convicted person from being a witness. That rule is abrogated. Penal Code 714; Code Civ. Pro. 832. Still the words “infamous crimes ” in Section 68 above cited must apply to such crimes as were infamous at common law.

Blackstone mentions, as making one infamous, “ treason, felony, perjury, or conspiracy, or if for some infamous offence he hath received judgment of the pillory, tumbrel or the like, or to be branded, whipt or stigmatized, or hath been attainted of false verdict, prcemunire or forgery.” 3 Bl. Com., 370, 364.

If the punishment inflicted were to determine the question of infamy, then the publication of a libel might have been an infamous crime. Tutchin’s Case, 14 State Trials, 1095.

But'the better opinion is, that it is the nature of the crime, and not the punishment, which determines the question, and that an infamous crime is an offence “ implying such a dereliction of moral principle as carries with it a conviction of a total disregard to the obligation'of an oath.” Per Sir.Wm. Scott, quoted in 1 Green. Ev., 373. Abbott’s Law Dict., title ‘ Infamous crimes.’ ”

In that section Greenleaf gives as the ennumeration of infamous crimes: treason, felony and the crimen falsi. The publication of a libel certainly is not within the first or the second, nor is it within the third, the crimen falsi; which implies some fraud or deceit, and which of itself must indicate a bad and immoral character.

Now, on the contrary, the publication of a libel, while it may sometimes be done with a very bad intent, does not necessarily imply disgraceful or immoral motives. It is not necessary to refer to the many well known convictions in England of men influenced by patriotic motives, which prove this assertion. Certainly the crime is not one which involves necessarily deception or dishonesty. On the contrary, its publicity is of the essence of the wrong.

We do not think, therefore, that the publication of a libel is, in its nature, an infamous crime; though it may sometimes show a malevolent or a contemptible spirit.

Judgment and conviction reversed and new trial granted.

Bockes and Landon, J.J., concur.


author: Learned, J. Landon, J.

text:
    Kerzia Brockway, Resp’t v. John W. Tayntor et al., Appl’ts.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)
    1. Deed — Lien created by — Parties claiming under grantee take SUBJECT TO.
    On August 29th, 1874, plaintiff, being the owner of land subject to two mortgages executed by her, the first, for a balance thereon of $ 1200, and the second for $600, conveyed the premises to her daughter M. L. B., subject to said mortgages, which the grantee agreed to pay, and also subject to an annual payment of $100, by the grantee to the grantor during her natural life; and also to the support of the grantor during her natural life, with an agreement by the grantee to make such payment and to perform as a consideration of the deed; andan agreement that said $100 and said support should be a lien on the premises. On the same day an agreement between the said parties to the same effect was executed; and both deed and agreement were recorded in the deed book of the county clerk’s office. In July, 1877, N. D .W. sued this plaintiff on a note of $500. The action was never tried. On September 19th, 1877, M. L. B. executed to ST. D. W. a mortgage on the premises of $500. On June 5th, 1878, Ñ. D. W. took an assignment of the $ 600 mortgage and soon commenced a foreclosure making plaintiff and M. L. B. parties. Judgment of foreclosure and sale was entered July 19th, 1878, but no sale has been had. M. L. B. conveyed the premises to N. D .W. on November 9th, 1878, by warranty deed, no mention of any of the mortgages being made therein. N.D. W. died intestate April 9th, 1879, leaving a widow and children. His administrator, with the funds of the estate, paid off and satisfied the $1200 mortgage on September 3rd, 1880. This action was brought to enforce against the premises a lien for the annual payment of $100 alleged to be in arrears, and for the annual support alleged not to have been furnished Held, that the recorded deed from plaintiff to M. L. B., was notice to all claiming under M. L. B. of its provisions and of the lien established thereby. The subsequent grantees of M. L. B. are charged with notice not altogether under the recording act, but because they must make title through her, and therefore take subject to the charges which her title deeds show.
    2. Mortgage — Party assuming payment of becomes principal debtor.

      Held, that M. L. B., by agreeing to pay the first and second mortgages, as a part of the consideration, became in equity liable as quasi principal to pay those mortgages and the plaintiff became in equity the quasi surety; the land being also the primary fund.
    3. Equity of redemption — Lien created on, is subsequent to that of prior mortgages.
    " “ _ » ¡5 2 h> o K ~ <® o' re ® g. P M i& B SS B P'g.Of^-gf ‘W í gN ^ w 1 g s w §• g-5,2 s s-; ai;!-0 2.-" ® tr g. 4¡ 8-Pg-oAh-S^ _ a 0^3 g ® g > ® 2 3 g<3 § t, O 2 03 Sj cá 5 +=> •** > .2 tí S g® ^ S..5.2 [§ &,® o § 2 8 5 3sa.ss
    4. Libes — Conveyance of premises subject to — What not sufficient TO MAKE GRANTEE MARL® PERSONALLY,
    The $2500 mentioned, as the consideration in the deed from, M. L, B, to N. D. W., was about equal to the aggregate of the then existing liens. But in the absence of any proof on that point, it cannot be assumed that the existing mortgages were the actual consideration. On the face of the deed, the.consideration is expressed of §2500 ‘‘paid to hex',” and nothing is said about the mortgage. While, therefore, N. D. W. took only such interest in the premises as M. L. B. had, he did not become personally liable in regard to any of the mortgages or liens.
    5. Same — 'Warranty— Grantor bound to protect grantee peom ouster BY FORECLOSURE.

      Meld, that M. L. B. having become in equity, the principal debtor of the first and second mortgages; and having conveyed toN. IX W. by waiTanty deed not mentioning the mortgages, she remained the pi'incipal debtor and boxrnd to protect him from ouster under foreclosure of the mortgages.
    6. Same — Payment op mortgage by administrator op grantee — Priority OF DIEN PRESERVED.

      Meld, that when the administrators of H. D. W., paid off and satisfied the $ 1200 mortgage, they were not paying any liability which NT. D. W. owed to any one, they were only relieving the land of his heirs from a burden. As between hei’self and N. D. W., plaintiff was the pei'son bound to pay the mortgage. In any recovery for the plaintiff’s annuity and support, tliei’e ■ should be declaimed a prior lien to the administrators of ÜST. D. W. for the money paid by them in satisfaction of the $1200 mortgage.

      7. Merger — When it will not occur.

      Meld, that the $600, which had been foreclosed by N. D. W., was not merged in the conveyance of the premises to him. Mex-ger will not be permitted if the parties intend that there should be no merger, or if merger will produce injustice. (Landon J., dissenting.)
    S. Mortgagee not entitled to rents unless action op foreclosure COMMENCED AND RECEIVER APPOINTED.

      Meld, that N. D. W. and his heirs were entitled to the rents and profits of the land, and were not bound to pay them to the moi-tgagee or to plaintiff. The mortgagee can only be entitled to rent by commencing an action and having a receiver appointed.
    On the 29tli day of August, 1874, the plaintiff was the owner of the premises in question, subject to two mortgages ; the first for a balance thereon of $1200, the second for $600 ; both executed by her.
    On that day she conveyed the premises to her daughter, Mary L. Brockway, for a consideration, as stated, of one dollar and other good considerations, subject to the two mortgages, which the grantee agreed to pay and also subject to an annual payment of $100 by the grantee to the grantor during her natural life ; and also to the support of the grantor during her natural life ; with an agreement by the grantee to make such payment and to perform as a consideration of the deed; and an agreement that said $100 and said support should be a lien on the premises.
    On the same day an agreement between the said parties to the same effect was executed ; and both deed and agreement were recorded in the deed book of the County Clerk’s office. In July, 1877, Nathaniel D. Woodhull sued the plaintiff on a note of $500. The action was never tried.
    On the 19th day of September, 1877, Mary L. Brockway executed to Woodhull a mortgage on the premises of $500. This mortgage mentions a prior incumbrance on the premises of about fifteen hundred dollars ; referring undoubtedly to the two mortgages aforesaid. The defendants claim that this five hundred dollar mortgage was in settlement of the action on the note ; but this fact is not found.
    On the 5th of June, 1878, Woodhull took an assignment of the second or six hundred dollar mortgage (then reduced to $415. 14), and soon commenced a foreclosure ; making plaintiff and Mary L. Broekway parties. Judgment of foreclosure and sale was entered July, 19th, 1878, but no sale has been had.
    On the 9th of November, 1878, Mary L. Brockway conveyed the premises to Woodhull by warranty deed. The consideration stated in the deed is twenty-five hundred dollars. But no mention is made therein of any of the mortgages.
    On the 19th day of April, 1879, Woodhull died intestate, leaving a widow and children. On the 3rd of September, 1880, his administrator, with funds of the estate, paid off and satisfied the $1200 mortgage.
    The plaintiff now brings this action to enforce against the premises a lien for the annual payment of $100, alleged to be in arrears and for the annual support alleged not to have been furnished.
    The court held that the liens and claims of the plaintiff were prior to all the mortgages ; that the $1200 mortgage was paid in pursuance of the administrator’s duty, and that defendants were not entitled to have it made a lien ; that the $500 mortgage was merged in Woodhull’s title.
    Tiie defendants who are heirs and grantee of an heir of Woodhull appeal.

      J. W Crane, for respondent; Dunning, JSdsali, Mart and Fowler, for appellants; John M. Shedd, Guardian ad litem.

   Learned, J.

The recorded deed from plaintiff to Mary L. was noticed to all claiming under Mary L. of its provisions and of the lien established thereby. This is not the case of a deed intended as a mortgage and recorded improperly in the deed book. The subsequent grantees of Mary L. are charged with notice, not altogether under the recording act, but because they must make title through her, and therefore take subject to the chargeswhich her title deeds show.

Mary L., by agreement to pay the first and second mortgages, as a part of the consideration, became in equity liable as quasi principal to pay those mortgages and the plaintiff became in equity the quasi surety ; the land being also the primary fund.

The $500 mortgage executed by Mary L. to Woodhull, being subsequent to the deed to her which contained the provisions for a lien, was subject to the lien for plaintiffs annuity and support. But as the deed to Mary L. was expressly subjected .to the first and second mortgages, they remained prior liens to the lien of plaintiff’s annuity and support. Plaintiff’s interest in the land when she conveyed to Mary L., was only the equity of redemption, after payment of these two mortgages. Therefore the lien which she created by her deed was only upon the said equity of redemption. She was herself liable on those two mortgages and she transferred nothing to Mary except the equity subject to them. And this should be borne in mind when we consider her equity. And so these parties expressly stated the matter in the deed. Therefore subsequent purchasers had notice that those two mortgages had priority over the lien for annuity and support; and that all the interest in the laud which plaintiff had, on which to create this lien, was this bare equity of redemption.

It seems that the $2500 mentioned as the consideration in the deed from Mary L. to Woodhull was about equal to the aggregate of the then existing leins. But in the absence of any proof on that point, it cannot be assumed that the existing mortgages were the actual consideration. On the face of the deed the consideration is expressed of $2500 “paid to Tier ” and nothing is said about the mortgage. We must therefore take the deed as it reads, expressing a money consideration paid to her, and no agreement to assume the mortgages. While, therefore, Woodhull took only such interest in the premises as Mary L. had, he did not become personally liable in regard to any of the mortgages or liens. It is unnecessary to cite authorities on a point so plain. He was under no personal obligation to pay the mortgages or to pay the annuity or support of plaintiff. Very possibly the $500 mortgage of Mary L. to him became merged, in the absence of any evidence that it was to be kept in force.

In fact, as the deed of Mary L. to Woodhull was a warranty deed, Mary L. was bound to protect him against any ouster by virtue of the first or second mortgages or by virtue of the plaintiff’s lien.

Under that deed it remained the duty of Mary L. to discharge those mortgages and to pay the lien. All of those three obligations rested on her personally, and none of them rested on Woodhull personally.

Of course, he might have to pay them to protect his land; but if those mortgages had been foreclosed and Woodhull had been dispossessed, or if the plaintiff’s lien had been enforced by action, and he had been dispossessed, he would have had a right of action against Mary L. on her covenant of warranty.

As Woodhull then owed no obligation to Mary L. to pay the first or second mortgages, or to pay the annuity or support, still less did be owe any obligation to the plaintiff to pay these mortgages or the annuity and support. As above pointed out, Mary L. had become in equity the principal debtor of the first and second mortgages ; and by conveying to Woodhull by warranty deed not mentioning the mortgages she remained the principal debtor and bound to protect him from ouster under foreclosure of these mortgages.

When the plaintiff executed her deed to Mary L. the only property on which she established a lien was the equity of redemption, subject to the first and second mortgages.

She had not then and she has never since had any equity except upon the land, subject to those two mortgages. That was all which she owned on which she could create a lien. Mary L., who made herself personally bound to pay the annuity and the support and the mortgages also, was in no position to assert this, but Woodhull was, because he was personally liable for nothing. He could claim that the plaintiff had no interest or claim until payment of those two mortgages.

When, therefore, the administrator of Woodhull paid off and satisfied the $1200 mortgage, they were not, as is above shown, paying any liability or obligation which Woodhull owed to any one. They were only relieving the land of his heirs from a burden. They were paying an obligation owed in equity as principal by Mary L. and as surety by the plaintiff, and on which the plaintiff was legally and in respect to him the principal debtor.

By this act, unless relief is now afforded, the administrators will have given the plaintiff a lien on premises increased by $1200 in value above what she owned when she created the lien; and that too by taking this value from the heirs of Woodhull, who was under no obligation to pay the amount.

As between herself and Woodhull, the plaintiff was the person bound to pay the mortgage. For he had not only not assumed it personalty, but he had not even taken the land expressly subject thereto. So that, as against him, the land was not the primary fund. His administrators have therefore paid her debt; and she seeks to take advantage of their act.

In any recovery, therefore, for the plaintiff’s annuity and support, there should be declared a prior lien to the administrators of Woodhull for the money paid by them in satisfaction of the $1200 mortgage.

It is claimed, however, that in this there should be taken into account rents which Woodhull has received. And it is urged that he and his heirs stands as mortgagees in possession.

On the contrary, they are owners of the equity in fee ; purchasers under a warranty deed, and in no way mortgagees.

It matters not, on this point, whether Woodhull actually paid Mary L. $2,500, or whether he only took a conveyance of the incumbered property without payment.

In either case he became a purchaser in fee. She was owner in fee, and had a right to convey to him in fee with or without .consideration. As owner in fee he was entitled to the income. Neither the mortgagee, nor the plaintiff under her lien can claim any right to the rents.

The possession and receipt of lands mortgaged does not make the possessor liable to pay out of the receipts, or to keep down, interest on the mortgage. The mortgagee can only be entitled to rent by commencing an action and having a receiver appointed. Argall v. Pitts, 78 N. Y., 239.

On the other hand, the plaintiff, as respects her lien, is the quasi mortgagee, while Woodhull and his heirs are the owners of the property, subject to her lien, such as it may be. They have the right to the rents and profits and are under no liability to account to her therefor. And they are entitled to these rents and profits, without reference to the question what price Woodhull paid Mary L. for the premises. He certainly did not take as mortgagee. When a mortgagor conveys the mortgaged land by a warranty deed to the mortgagee, the latter does not enter as mortgagee in possession. The acceptance of the deed disavows any such position.

The defendants insist that the $500 mortgage was given for a debt of plaintiff, and it should therefore have a preference. The circumstances render it probable such was the consideration ; but the fact is not found.

It is further claimed by the defendant that neither the $500 mortgage nor the judgment of foreclosure, or the balance of the $600 mortgage were merged in the conveyance to Woodhull; and that both of these should have priority over plaintiff’s claim.

That position has been answered as to the $500 mortgage. It was subject to plaintiff’s claim in its inception. It can hardly be supposed that the deed of Mary L. warranted Woodhull against a mortgage which he himself held. As to the foreclosure, it is familiar law that merger will not be permitted if the parties intend that there should be no merger, or if merger will produce injustice.

Now at the time when Mary L. conveyed to Woodhull, he held the second mortgage then in judgment. The plaintiff held the third lien, viz., that for annuit}'- and support, and Woodhull had the fourth, the $500 mortgage.

The deed to him, as before mentioned, was with warranty; so that he assumed nothing. Is it equitable, or can the parties intend, that the second mortgage, should become merged in the title, so as to give the third lien a preference over the second ? Certainly not. The doctrine of merger is not applied so as to give a subsequent incumbrance preference, merely by the legal merger of the former incumbrance in the title. And therefore the second mortgage (being the one in judgment of foreclosure), has preference over plaintiff’s claim.

Some of the questions, particularly as to the burden of proof were presented. But we need not consider them.

To recapitulate ; when Mary L. conveyed to Woodhull the the liens were as follows. First; $1200 mortgage, second, the balance on the $600 mortage ; third, the plaintiff’s lien for support and annuity; fourth, the $500 mortgage to Woodhull. The deed to Woodhull did not change these liens or the order unless the fourth may have been merged.

Woodhull’ assumed no personal liability, and, on the contrary, his title was warranted by Mary L.

He and his heirs were entitled to the rent and profits ; and were not bound to pay them to the mortgagee or to plaintiff.

The payment by his adminstrators of the $1200 mortgage was not in discharge of any obligation of his; and they should not lose the priority of that lien.

But as my brethren do not agree as to some of these conclusions, the judgment must be somewhat differently modified.

The judgment must be modified so as to declare that the $1200 mortgage andthe interest thereon (or the amount thereof), and the judgment of foreclosure with its costs and interest, are liens on the premises prior to the plaintiff’s claim.

The Guardian ad litem is entitled to costs of the action and appeal.

From the avails of the sale after paying the expenses thereof, there shall be first paid to the administrators defendant the amount of the first mortgage, $1200, with interest from September 8,1880 ; next, from the balance there shall be paid the costs of the guardian ad litem; next should be paid the plaintiff’s claim and the balance to the heirs of Woodhull.

Landon, J.

I concur with the presiding-justice in his conclusions respecting the first or $1200 mortgage, and respecting the rents and profits of the premises. I think, however, the first and fourth mortgages were merged in the legal title. Woodhull held these mortgages when he obtained the deed. They were regarded as part of the purchase money. If otherwise, then, as to these two mortgages, he would be mortgagee in possession and should, to the extent of the rents and profits necessary to satisfy them, account.

This would result in the practicable extinguishment of these two mortgages, certainly of the elder of the two. But the trial judge was right in holding them merged in the title. As to the $1200 mortgage, Woodhull was not obliged to apply the rents and profits, and he assumed no personal obligation to pay that mortgage or the plaintiff’s mortgage. His administrators were therefore not liable to pay it, but having paid it mistakenly, ought to be subrogated to the rights of the holder.

Upon final consultation, no two mémbers of the court being in all respects in accord, the following result was reached and is the judgment to be pronounced.

Judgment notified by directing the payment, first to the defendants, the administrators upon the first mortgage of $1200, and interest from September 3, 1880; second, the costs of the guardian ad litem; third, the plaintiff’s claim; fourth, the surplus to the defendant’s heirs of Woodhull. No other costs of this appeal as in the court below. As notified affirmed.


author: Landon. J.

text:
    Charles Duntley, Appl’t, v. Morton H. Davis, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Taxes — Collector of — De jure by election — Laws 1815, ch., 561, § 24.
    Laws 1815, chapter 561, § 24, provides that “ within such time not less than ten days, as the trustees shall allow him for the purpose, the collector, before receiving the first warrant for the collection of money, shall execute a bond to the trustees with one or more sureties, to be approved by a majority of the trustees, in such amount as the district meeting shall have fixed, or if such meeting shall not have fixed the amount therein, such amount as the trustees shall deem reasonable, conditioned for the due and faithful execution- of the duties of his office.” Defendant had been duly elected collector of taxes, and a warrant was placed in his hands as such for the collection of school taxes. At the time of receiving the warrant, he had not been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustees, yet notwithstanding he had given no bond, he posted the statutory notices to the tax-payers to make voluntary payment within two weeks, and he personally made demand of payment within the life of the warrant. The plaintiff refused to pay his tax. Upon the expiration of the warrant the trustee renewed it, and the day following the defendant gave his bond to the trustee and again demanded payment of the plaintiff, and upon his refusal levied on his wagon and thereafter sold it. The defendant after giving his bond did not again post the notice giving the tax-payers time for voluntary payment. Held, that having been duly elected collector of taxes the defendant was collector de jure.

    2. Same — Bond — Provisions of statute as to time of filing of bond DIRECTORY.

      Held, that the time prescribed by the statute, so far as the validity of the bond is concerned is merely directory, since the statute does not negative its validity, if filed after the warrant is delivered.
    3. Same — Acts under warrant validated by bond subsequently GIVEN.
    The defendant had posted the preliminary notices when his competency was only partial. Held, that upon the filing of his bond all his acts under the warrant before levy and sale were validated.

      Pond & Brown, for appellant; M. C. Perry, for respondent.
   Landon. J.

The warrant for the collection of the school taxes was placed in the hands of the defendant, December 11, 1882. He had been duly elected collector of taxes for the school district in October previous. He was therefore collector ele jure. Foot v. Stiles, 57 N. Y., 399; Williamson v. McKinney 52 id., 382. He had not at the time he received the warrant been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustee, as the statute requires. Ch. 567, § 24, Laws of 1875.

The defendant as collector was not therefore so in default because of such omission to give the bond as to avoid his title to the office, or to make it defeasible. Woodhull v. Bohenblost 4 Hun, 399.

The section of the statute cited, however, provides that, “ within such time, not less than ten days, as the trustees shall allow him for the purpose, the collector, before receiving the first warrant for the collection of money, shall execute a bond to the trustees with one or more sureties, to be approved by a majority of the trustees, in such amount as the district meeting shall have fixed, or if such meeting shall not have fixed the amount therein, such amount as the trustee shall deem reasonable, conditioned for the due and faithful execution of the duties of his office.” Laws of 1875, chap. 567, § 24, p. 644. Laws of 1864, chap. 555, § 83, p. 1263.

The defendant as collector, notwithstanding he had given no bond, proceeded under the warrant. He posted the statutory notices to the tax-payers to make voluntary payment within two weeks, and he personally made demand of payment of them within the life of the warrant. The tax against 'the plaintiff was $1.12 which he refused to pay. The warrant expired and was duly renewed by the trustee January 24, 1883. On the next day the defendant gave his bond to the trustee, and then again demanded payment of the plaintiff; this was refused, whereupon the defendant levied upon his wagon, and thereafter sold it. The defendant after giving his bond, did not again post the statutory notices giving the tax-payers time for voluntary payment.

It is a condition precedent to the right of the collector to levy and sell, that such notices be posted. Bedell v. Barnes, 17 Hun, 353. If the notices posted before the bond was given Were a compliance with the statute, or if the statute requiring the bond to be given is merely directory, and when given related back to the receipt of the warrant, then the plaintiff cannot complain.

It was held in Woodhull v. Bohenblost, 4 Hun, 399, that it was the intention of the legislature that the collector should have no power to execute the warrant until the bond should have been given. That was a case between the trustee and collector. No doubt the people for whose benefit the bond is required may rightfully object to bis collecting any taxes , until be has given the bond guaranteeing his fidelity. It will be seen that the section of the statute quoted above authorizes the trustees to fix the time in which the collector shall give the bond, and makes the time end before the collector receives his first warrant.

Here the time fixed by the trustee ended later. But time, so far as the validity of the bond is concerned, is merely directory, since the statute does not negative its validity, if filed'after the warrant is delivered. Gale v. Mead, 2 Den., 160; People v. Dawson, 25 N. Y., 399.

The giving of the bond is mandatory, the time when, directory. When, therefore, the defendant had delivered the bond, his competency to execute the warrant was complete. He had posted the preliminary notices when his competency was only partial.

The case is not without difficulty, and so far as we know, is without precedent; but we think that public policy, in the absence of any evidence that the tax-payer or the public were ■ prejudiced thereby, and inasmuch as abuses do not seem likely to arise or be favored, requires the holding, that upon the filing of his bond all his acts under the warrant, before levy and .sale, were validated.

In the case of Rounds v. Mansfield, 38 Maine, 586, to which we are cited, the statute required the pound keeper before acting as such to give a bond. The bond was the condition precedent to his right to act. Here the statute does not say the giving the bond is a condition precedent to the right of the collector to act or to receive the warrant. But we quite agree that he cannot enforce the warrant until he shall have given his bond. Here he had given it before he enforced the warrant.

The judgment should be affirmed with costs.

Lbabhed, P. J. and Bocees, J., concur.


author: Landon. J. Learned, P. J.

text:
    Susan M. Freeman, respondent, v. The National Benefit Society of New York, appellant.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. INSURANCE (Life) — Construction of clause in policy — Suicide not a crime — Penal Code, § 373.
    Where a life insurance policy provided that it should he void if the member named therein “ shall die ... in violation of or attempt to violate any criminal law ... of any State or country in which the member herein may he ; ” the insured committed suicide. Held, that the deceased did not die in violation of or attempt to violate any criminal law of the State, although the attempt to commit suicide is made a crime, Penal Code, § 173, yet if successful it is suicide and no crime. (SeeDarrowY. Family Fund Society, & N. Y. State ft. 745.

      2. Same — Measure op amount to be paid in case of death.
    The certificate of insurance contained a contract on the part of the insurer to pay to the plaintiff in ninety days after due proof of the death of the member, “a sum equal to the amount received from a death assessment, but not to exceed $3000.” No assessment was levied by the insurer to meet the claim of the plaintiff, hut it was proved that if such assessment had been levied and collected it would have exceeded $3000. Held, that the contract was to pay a certain sum, not to cause it to be levied and collected; it was not an agreement to pay from a special fund to be provided, but to pay absolutely, and the reference to the “ amount received from a death assessment ” is one of the methods of measuring the amount to be paid.
    3. Same — To whom loss may be made payable.
    Where the charter of the insurer or the statute under which it was insured does not forbid the insured to make the policy payable to whomever he may appoint, and there is no evidence tending to impeach the good faith of the transaction, a policy on the life of the insured made payable in case of death to another, though not having an insurable interest, must be paid by the insurer.

      Louis P. Levi, for app’lt; Pond, French & Brackett, for resp’t.
   Landon. J.

The insured was the same person who was insured in the case of Darrow v. Family Fund Society, and the language of the policy respecting the death of the insured in the violation of, or attempt to violate any criminal law, is identical with the language in the policy in that case. Our decision in that case, that suicide did not come within the terms of the language, employed is decisive of the same question here.

The certificate of insurance in this case contains a contract on the part of the society to pay to the plaintiff in ninety days after due proof of the death of the member, “ a sum equal to the amount received from a death assessment but not to exceed $3000.”

No assessment was levied by the society to meet the claim of the plaintiff, but it was proved that if such assessment liad been levied and collected, it would have exceeded $3000.

The defendant objects that an action at law will not in such case lie to recover the $3000, but only an action in equity to compel the society to levy and collect the amount and then pay it to the plaintiff.

But the contract was to pay a certain sum, not to cause it to be levied and collected; it was not an agreement to pay from a special fund to be provided, but to pay absolutely, and the reference to the “ amount received from a death assessment,” is one of the methods of measuring the amount to be paid. Whether that assessment shall be levied in each case of death is a matter for the society to determine. Here it is shown that the amount payable is less than an assessment fully collected would realize. Whether there is in the death fund an accumulation of like margins from previous assessments is best known to the defendant. The printed rules of the defendant provide that “no assessment. is to be made in either class while there remains unclaimed in the death fund of the class, a sum sufficient to pay the maximum amount of benefit.” That no assessment was made with reference to this case is some evidence that none was necessary.

The objection that the plaintiff was not shown to have an insurable interest in the life of the insured was met by the recital in the application that she was a creditor. This was the only evidence upon the point and therefore was not contradicted. But the plaintiff did not procure the insurance; the insured did that, and named the plaintiff as beneficiary.

There was nothing in the charter or statute under which this society was organized forbidding the insured to make the policy payable to whomever he should appoint, and there is no evidence tending to impeach the good faith of the transaction on the part of the insured. The defendant therefore must pay as it has agreed. Olmstead v. Keyes, 85 N. Y., 593; Bickerton v. Jaques, 28 Hun, 119; Massey v. Mutual Relief Soc., 102 N. Y., 523.

The act of the legislature under which the defendant was organized was examined in the case last cited, and nothing found in it requiring the insured to restrict his beneficiary to a person having an insurable interest in his life.

The judgment should be affirmed with costs.

Bockes, J. concurs.

Learned, P. J.

Since the important question in the case has been decided in plaintiff’s favor in the case of Darrow v. Family Fund Society, contrary to my own views I concur in this opinion.


text:
    Marianna Clark, Appl’t, v. Alfred Mosher, adm’r., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886).
    1. INTERPLEADING — PROCEEDINGS IN THE NATURE OF, UNDER CODE ClV. Pro., § 820, do not change the character of an action — Action TRIABLE BY A JURY, CODE ClV. PRO., § 968.
    This action was commenced against an insurance company, to recover money due on a policy. The> intestate of the present defendant claimed tlie same sum of money as owner of the same policy, -and was substituted as defendant, the original defendant paying the money into court. Held, that here the action was originally an action at law, and was triable by jury, as also would have been an action by defendant’s intestate against the company. That the proceeding under Code Civ. Pro., § 820_, in the nature of an interpleader did not change the character of the action, it only admitted the liability of the company to some one, and left each of the claimants to prove his ownership of the claim.
    2. Jury — Trial by — When not waived, Code Civ. Pro., § 1009.
    The cause was placed on the Circuit Calendar. When it was called the defendant’s counsel stated it was an Equity case, the plaintiff’s counsel said nothing. The court said it would direct a jury to be placed in the box, to .which it might submit any specific question of fact. Held, that the plaintiff did not waive her right to trial by jury by not objecting to this, since she - had a jury.

      3. Verdict — What is. hot general or special, Code Civ. Pro., §§ 1186,1187. '

      Held, that a verdict rendered by the jury on a specific question of fact was neither a general nor special verdict.
    4. Trial by jury — When waived it seems that trial must be by the court, Code Civ. Pro., § 1008.
    In an action triable of right by jury, it would seem that if a jury trial were waived, the cause must be tried by the court.
    8. Same — Of specific questions of fact — Limited to actions not of RIGHT TRIABLE BY JURY, CODE ClV. PRO., § 971.
    It would seem that there is no authority for directing a specific question of fact in such an action to be tried by a jury. Such authority is limited, to actions not of right triable by a jury.
    This action was originally commenced against the Insurance company to recover money due on a policy.
    Charles A. Mosher (the intestate whom the present defendant represents) claimed the same sum of money as owner of the same policy, and was substituted as defendant; the original defendant paying the money into court.
    The cause was placed on the circuit calendar of October, 1885.
    When it was called, the defendant’s counsel stated it was an equity case; the plaintiff’s counsel said nothing; the court said it would direct a jury .to be placed in the box to which it might, if it deemed proper, submit any specific question of fact.
    After the conclusion of the evidence, the court submitted a question to the jury, to which they responded “Yes.” This verdict was in plaintiff’s favor. The defendant moved that the verdict be set aside and the court find the question contrary to the finding of the jury. The plaintiff opposed the motion.
    In September, 1886, the court granted that motion; and found that same question favorably to defendant, and contrary to the jury’s finding; and also found other facts and decided in favor of defendant on which judgment was entered.
    The-plaintiff subsequently moved to set aside this order and judgment on the ground that the action was at law, and that the Judge was bound by the verdict, except to set it aside and grant a new trial. This motion was denied and plaintiff appeals.

      Merritt & Ryan, for Appl’t; William Holland, for Resp’t.
   Learned, J.

Under a bill of interpleader after it had been adjudged that the bill was properly brought, the question between the interpleading defendants was decided as best suited the nature of the case; by an action, or a feigned issue, or a reference. Angell v Hadden, 16 Ves. 202.

Perhaps the Court of Equity, haying jurisdiction of the original action, might dispose of the question between the defendants by its own methods.

But that is not the present case. Here the action was originally an action at law (to use the old phrase) and was triable by a jury. If Charles A. Mosher had sued the company, his action would have been of the same character. In each, the parties would have been by the Constitution and laws entitled to a jury trial. Code, § 968.

The proceeding in the nature of interpleader, Code, § 820, did not change the character of the action. It only admitted the liability of the company to some one, and left each of the claimants to prove his ownership of the claim.

Each of the parties was now to give evidence tending to show that he had a cause of action against the company for a sum of money. Neither of them had a cause of action against the other; but each claimed to have a cause of action against the company; and practically these two causes were tried in this one action. But each of these was a cause of action at law (to use the old phrase) and each was triable by a jury. Each of such actions which might have been brought by the plaintiff and the defendant would have demanded simply judgment for a sum of money; and that is all which either party can now have in this action. There is no other relief sought for; and no such relief as was within the pretended province of a Court of Equity.

Of course under section 1009, a party may waive a jury trial; and if in this case the defendant had so moved the trial and the plaintiff had not objected, the trial might liavé been had by the court. But this was not what toot place. The defendant said it was an equity case; the plaintiff did not reply; and the court announced that it would put a jury in the box, to which it might .submit any specific question of fact. Therefore the plaintiff had a jury to pass on the questions in controversy. If the court had refused to have a jury called, or had refused to submit any question to such jury, the plaintiff could have objected, and could have insisted on her right to a jury trial. But there was no occasion to object, since she had a jury.

Now the verdict rendered by the jury was neither a general nor a special verdict. Sections 1186, 1187. It was irregular. But neither party objected to this irregularity; and it was evidently assumed that this verdict was practically conclusive of the ease.

As this was an action triable of right by a jury, it would seem, if the jury trial were waived, that the cause must be tried by the court. Section 1008. And it would seem also that there is no authority in such an action for directing a specific question of fact, to be tried by a jury. Section 971. Such authority is limited to actions not of right triable by a jury.

If we were satisfied that the plaintiff waived a jury trial, and consented thereby to a trial by the court, we might pass over the irregularity. But we do not see such waiver, when the .plaintiff went into the trial with a jury iñ the box, to which the plaintiff could have insisted that the whole issue should be submitted. And this is the more apparent, since, if there had been a waiver of a jury trial in a case to which the parties were entitled thereto, there could have been no submission of a specific question to a jury. Section 971.

It appears from the order of September 13, that the motion granted was to set aside the verdict as contrary to law and evidence. And it appears by the affidavits that the learned Justice refused to set it aside upon principles applicable only to findings in equity.

If then, as would seem, the learned Justice set aside the verdict as contrary to law and evidence, his order could only be reviewed by appeal.

But the question as to his right to find facts and enter a judgment thereon, still remains, and can be heard on this appeal.

So far then as the order of September 28th, appealed from, refused to set aside the order of September 13th, (which was the order setting aside the verdict) we think it was correct. But so far as it refused to set aside the judgment including the findings of fact and conclusions of law, we think it was incorrect. And we think the order setting aside the verdict should contain an order for a new trial.

We do not know whether the plaintiffs are in time to review by appeal the order setting aside the verdict. Nothing in the order now granted is to interfere with that right.

An order is granted in conformity with these views and without costs to either party.

Bockes and Landon, JJ., concur.


author: Landon, J.

text:
    John M. Mayer, Resp’t, v. The Equitable Reserve Fund Life Association, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Insurance (Life) — Evidence — Invalidity of policy may be shown AS DEFENSE TO AN ACTION FOB NON-PAYMENT.
    Where the contracts of a Life Insurance Association with its members provide that upon the occurrence of the death of any of its members, an assessment might be levied, and upon the death of one of its members holding the company’s contract of insurance on his life, such an assessment was levied. Held, that this contract by its terms, and by the terms of the constitution of the company, which were also a part thereof, being dependent for its validity upon the truth of the material representations made upon procuring it, the company was warranted in refusing payment of a claim of which it could show the invalidity.
    2. Same — Evidence of invalidity admissible.
    In an action brought for the refusal to pay insurance money under such a contract. Held, that evidence showing the invalidity of the contract was admissible in defense of the non-payment.

      E. S. Wood, for resp’t; Fleischman & May, for appl’t.
   Landon, J.

The defendant offered evidence tending to show the invalidity of the plaintiff’s claim. This evidence was excluded upon the assumption that the defendant acquired the money in question by virtue of assessments, levied upon and paid by its members for the purpose of paying the claim, and thereby the defendant became the agent of the members for the purpose of paying the money upon the claim, and therefore had no right to contest its validity or withhold its payment.

We do not think the facts justify such an assumption. The money was assessed by the defendant upon its members, and paid by them under their contracts for insurance with the defendant. These contracts provided that “upon the occurrence of the death of any of its members,” the assessment might be levied. The assessment in this instance was levied by the defendant upon the occurrence of the death of Charles Stephan, who held at the time of his death the defendant’s contract of insurance upon his life. That contract was either valid or invalid. By its terms, and by the terms of the constitution and by-laws of the defendant, which were a part of the contract, its validity depended upon the truth of the material representations made by Stephan upon procuring it. The right to payment under the contract depended upon its validity, or, at least, upon the inability of the defendant to show its invalidity. That invalidity it offered evidence tending to show: The defendant was, in a certain sense, the agent of the members of the company, but was an agent with-special and defined powers and limitations, and. the true and obvious construction of these powers and limitations forbade payment upon a claim which it was able to show was procured through misrepresentation or fraudulent suppression of facts, concerning which it required answers from Stephan when he applied for membership. That it had realized the money with which to make payment, was no waiver of its duty to see to it that payment was due. That duty it still owed to its members, who had.payed their assessments, trusting to the fidelity of the company to protect them and the fund from invalid claims.

We think the defendant was entitle to prove the facts which it offered in defence.

. Judgment reversed, new trial granted, costs to abide the event.

Learned, P. J., and Bockes, J., concur.


text:
    David Ireland, Ex’r, etc., Resp’t, v. Myra A. Ireland, by Guardian, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Insurance (Life) — Conflicting claimants — Interpleader.
    By membership in an order, D. I. became entitled to all the rights and privileges of membership therein, and to participate in the beneficiary fund of the order to tire amount of §2,000, to be paid at his death to his sister. These rights were by the certificate of membership made dependent on his compliance with the rules and requirements of the order, to which terms he agreed. By the rules printed on the certificate, it was provided that any member desiring to make a new direction as to the payment of his share of the beneficiary fund, might do so in the manner prescribed therein. D. I. desired to change the direction so that the payment might be made to his wife, and so expressed himself in his will, but was prevented by death from observing the required forms. Upon an action for the payment of the fund, which was brought after his death by the sister of D. I. against the order, it paid the money into court, and procured the wife of D. I. to be substituted as defendant. Held, that the payment of the money into court did not in any way better or prejudice the legal position of either party against the other. That the party succeeding must make a case that would entitle her to succeed against the association.
    2. Same — Rules of Association binding on partt agreeing to them —Change in designation of beneficiary.

      Held, that D. I, having agreed to the regulations prescribed by the association, the manner of changing the designation of the beneficiary of the fund due upon his death must be pursued as laid down by the rules thereof, in order to divest the party first designated of her expectant interest.
    8. Same — Gift — When perfected by delivery.
    In order that a gift may be perfected by delivery, the subject-matter of the gift must be capable of transfer by delivery.

      J. W. Houghton, for resp’t; J. W. Crane, for appl’t.
   Landon, J.

Delbert Ireland was a master workman of tbe “ Grand Lodge, Ancient Order of United Workingmen of the State of New York.” He held its certificate of membership, wherein it was certified that he “ is entitled to all the rights and privileges of membership . . . and to participate in the beneficiary fund of the Order to the amount of $2,000, which sum shall, at his death, be paid to Jennie Ireland, sister . . . issued upon the express condition that said Delbert Ireland shall, in every particular, while a member of said order, comply with all the rules and requirements thereof.” Upon his application for membership he had so agreed.

One of the rules of the Order, which was printed upon the back of the certificate, prescribed that any member desiring to make a new direction as to its payment might do so by authorizing such change in the form prescribed and printed upon the back of the certificate, to be attested by the Recorder of the lodge, and reported to the Grand Recorder, paying fifty cents, surrendering the old certificate, and taking a new one.

He was unmarried when be procured this certificate, and subsequently married the defendant.

On Sunday, the 21st of June, 1885, being under apprehension of death from his existing illness, he sent for his friend, Mr. Wing, delivered to him the certificate, and told him that he wanted it so changed that his wife should have the benefit of it; that he wanted Wing to have it changed. Wing proposed to go immediately with the certificate to the Recorder of the Lodge, resident in the village, and have the change made then, but Ireland objected to having, it done on Sunday, and told Wing to have it done the next day. Ireland’s -wife was present at the time. Wing took the certificate, and on the following morning undertook to find the Recorder of the Lodge, but did not succeed, and Ireland died that morning before any further steps had been taken to change the beneficiary.

Mr. Ireland’s sister sued the Insurance Association. It thereupon paid the money into court, and procured the wife of Mr. Ireland to be substituted as defendant.

The Insurance Association was thus allowed to drop out of the contest upon the theory that it was ready to pay the rightful claimant. Its payment of the money does not in any way better or prejudice the legal position of either party against the other. The party that succeeds must make a case that would have entitled her to succeed against the Association. Vosburgh v. Huntingdon, 15 Abb. 254; McKay v. Draper, 27 N. Y., 260; Ballou v. Grile, 50 Wis. 619.

It is claimed that this was an executed gift of the certificate to the wife, or to Mr. Wing, for her. We do not think so. In order that a gift may be perfected by delivery, the subject matter of the gift must be capable of transfer by delivery.

What was needful to be done here, and what Mr. Ireland manifestly understood was needful, was to revoke the existing designation of the sister, and then make the designation of the wife. How this was to ' be accomplished, the rules of the Association instructed Mr. Ireland, and he had agreed to observe them. He sought to observe them, On the face of the certificate the sister remains the designated beneficiary. There was one way in winch she could have been divested of her expected interest. She insists that since that, way has not been observed, she has not been divested. It is plain that the Association, bound by its contract to pay her, would have no answer to her demand. Story v. Williamsburg M. M. B. Assoc'n, 95 N. Y., 474; Hellenburg v. Dist. No. One, etc., 94 N. Y., 580.

In the case last cited the contract for insurance was that the lodge should pay such person as the insured “shall formally designate to his lodge.” He failed to designate anybody in the form prescribed by the contract, but did designate his brother in bis will. The conrt held that because the designation by will had not been brought to the notice of the defendant in the lifetime of the testator, the designation was not such as the contract called for, and therefore the defendant was not liable to pay.

We are cited by the counsel for the wife to the case of Madeira v. Madeira, 5 Eastern Rep. 484, and Scott v. Provident Mutual Relief Assoc'n, id. 749.

In the Madeira case, the policy was of the ordinary kind, taken by the insured, payable upon death to his heirs or legal representatives. He gave it to his wife, whom he married after obtaining it. The questions in the case were, whether he could pass title in it to his wife by gift ? and whether the circumstances proved a gift. The court held with the wife upon both questions. We hold in this State that such a policy Avill pass by assignment, and therefore why not by gift in the absence of any opposing contract, charter, or statutory restrictions, especially if the donee has an insurable interest. St. John v. Am. M. Ins. Co., 13 N. Y., 31; Cannon v. N. W. Mutual Life Ins. Co., 29 Hun. 470.

The Scott case was one where a certificate of membership was reformed after the death of the insured, by inserting the name of the beneficiary in the certificate. It had been omitted by inadvertence; both the insured and the Association understood at the time of the application that the name should be inserted without further direction. It was the fault of the Association that the name had not been inserted, and it certainly could take no advantage of that.

Wing was simply the agent of Ireland, to do for him what it was competent for him to do for himself. Wing was, it may be conceded, the trustee, for the time being, of the certificate, but only for the purpose of executing his agency respecting it. When Ireland died, his agency ceased, and the title to the certificate vested in a new owner.

We think the sister was that owner; that she could have maintained her action against the Association, and that the wife could not.

The judgment should be affirmed, with costs. ‘

Learned, P. J., and Bockes, J., concur.


author: Learned, P. J.

text:
    Catharine Taylor, Resp’t, v. City of Cohoes, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Municipal CORPORATIONS — Costs in actions against — Chief fiscal officer, Code Civ. Pro., § 3245.
    Code Civ. Pro., § 3245, provides that costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands judgment for a sum of money only, unless the claim upon which the action is founded, was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation. Held, that the fiscal officer is he who has charge of the fisc, or public treasury, not necessarily the body who directs payments therefrom.
    2. Same — Actions ex delicto.

      Held, that there was no reason why this requirement of the statute should not apply to actions ex delicto.

      James Lansing, for resp’t; P. D. Niver, for appl’t.
   Learned, P. J.

Section 3245 does not differ essentially from section 2, chapter 262, Laws of 1859, except that it limits the provision to those actions in which the complaint demands judgment for a sum of money only. Thus it excludes (as explained in a note) equitable actions and actions of ejectment, etc.

The present action was commenced August 21, 1880.

In Baine v. Rochester, 85 N. Y., 524, it was held that it was no answer to this requirement of law that the city treasurer was not authorized to adjust or pay the claim. If this be so, then there is no reason why this requirement of the statute should not apply to actions ex delicto, and so we held in Dressel v. Kingston, 39 Sup. Ct. (32 Hun.) 526.

It is true that in McClure v. Supervisor of Niagara, 50 Barb. 594, the view was taken (contrary to the decision of the Court of Appeals above cited), that a similar provision applied only to claims which might be audited and not to actions for damages. The appeal from that decision was dismissed, 4 Abbott’s N. S. 202.

The case of Quinlan v. Utica, 18 Sup. Ct. (11 Hun.) 217, was decided on the special language of the charter of that city.

Howell v. Buffalo, 15 N. Y., 512, was not a question of costs. It was a decision that a certain requirement of the Charter was not a bar to the action.

Whatever the effect of these cases, they appear to have been cited to the court, in Baine v. Rochester, and the language of the court in that case has settled the matter.

But it has been contended that the Common Council must be considered to be the chief fiscal officer, unless some officer is expressly so-named. That view was taken in Grier v. Lockport, 21 Weekly Dig. 444, and Grage v. Hornellsville, 2 N. S. State. Rep., 345, in regard to the trustees of villages. That view was considered in Dressel v. Kingston, where it was claimed that the treasurer was not named the “ chief fiscal officer,” but the view was not adopted.

Now if we examine the case of Baine v. Rochester, we shall see that, in that instance, the claim had been presented to the Common Council. The argument is, that it was more reasonable to hold that the claim should be presented to a body who can allow it and direct payment, than to an officer who cannot.

But in that case the court distinctly say that it is no answer to the requirement of the Code that the treasurer was not authorized to adjust or pay. Therefore the power to adjust is unimportant in deciding who is the chief fiscal officer.

That the Chamberlain of Cohoes is the chief fiscal officer is evident, if we look at the charter, Laws 1869, chapter 912, Title VII., section 1. And indeed it may be said that the words, “chief fiscal officer” plainly indicate, not a body which assembles from time to time, but a permanent officer, entrusted by law with the care and custody of the moneys of the corporation.

The fiscal officer is he who has charge of the fisc, or public treasury; not necessarily the body who direct payment therefrom. The legislature of the State is not its chief fiscal officer, nor is the Common Council of the City its chief fiscal officer. And it is not necessary that an officer should be described in the charter as chief fiscal officer, to make the general provisions of the Code, or of the Act of 1859, applicable.

The question is simply whether he has charge of the fisc, that is of the treasury, or the money belonging to the'"corporation.

The order should be reversed with <$10 costs and printing disbursements, and motion granted with $10 cost.

Bockes and Landon JJ., concur.