author: Bradley, J. Follett, Ch. J. (dissenting).

text:
    The National Tradesmen’s Bank, App’lt, v. Margaret Wetmore, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Creditor’s action—When impossible to obtain judgment or return OF EXECUTION UNSATISFIED.
    _ The recovery of judgment and return of execution unsatisfied are essential prerequisites to the right of a creditor to bring an action to attack, as fraudulent against the creditors of the grantor, a conveyance made by him to his wife through a third 'party, yet the rule is not so unrelenting as to deny to a party the interposition of the equity powers of the court when the situation is such as to render impossible the aid of a court of law to there take the preliminary steps and produce what ordinarily may be treated as the condition precedent to the application for equitable relief.
    2. Same—Character and extent of belief.
    In such an action, although by the complaint it seems to have been prosecuted for the benefit of the plaintiff alone, yet the court may direct such judgment as upon the facts should be rendered in behalf of the plaintiff and other creditors, by an interlocutory judgment by which the creditors may have the opportunity of presenting their claims with a view to the distribution of the proceeds of the property.
    3. Same—Foreign assignee.
    Defendant’s husband, a resident of Connecticut, who was indebted to plaintiff, conveyed real estate in this state to her through a third person, without consideral ion, and thereafter made a general assignment. He subsequently died and under the laws of the state it was adjudged that his estate was insolvent and should be settled as such and that plaintiff could not maintain an action for the indebtedness due it. Held, that the property so transferred did not come within the assignee’s trust and that plaintiff had no remedy through the assignee in respect thereto and was entitled to maintain an action to set aside such conveyances.
    (Follett, Oh. J., dissents.)
    Appeal from a judgment of the general term of the third judicial department, which reversed a judgment entered on a decision of the special term and dismissed the complaint, with costs.
    Between August 20, 1882, and December 28, 1882, Abner C. Wetmore, a resident of the county of New Haven, 'in the state of Connecticut, became indebted to the plaintiff, a resident of the same place, in $5,869.07, on an over draft and on eleven promissory notes maturing on various dates between December 24, 1882, and March 21, 1883. December 28, 1882, Wetmore conveyed to Ulysses S. Campbell, without consideration, an undivided one-third interest in 11,230 acres of land in the county of Hamilton, in the state of New York, and he on the same day assumed to convey without consideration, and by an .unsealed deed, the same land to the defendant. January 3, 1883, the deeds were recorded in the office of the clerk of that county. February 19, 1883, Wetmore made a general assignment of all of his property to Eli Ives of the county of New Haven in the state of Connecticut, for the benefit of creditors, which was recorded on the same day in the court of probate for that county. The assignee accepted of the trust and his appointment was confirmed by the court of probate, and he became the legal and acting assignee and so continued until April 19, 1883, when he resigned, and Charles P. Ives, of the county of Hartford in the state of Connecticut, was, by.the court of probate, duly appointed trustee of the assigned estate, pursuant to the statutes of that state. He accepted of the trust, qualified and entered upon the discharge of his duties and has ever since remained the legal and acting trustee of said estate. The plaintiff began actions against Abner C. Wetmore in the courts of Connecticut for the recovery of the sums due from him to it, and was engaged in prosecuting them, when, in June, 1883, he died intestate, and in October, 1883, Charles P. Ives (the substituted assignee) was duly appointed administrator of the intestate’s estate, accepted of the trust and has ever since remained the legal and acting administrator and assignee of said estate.
    Under the statutes of Connecticut actions for the recovery of money due on contract may be revived and prosecuted against the personal representatives of a solvent estate; but, if the estate be insolvent, the court of probate may adjudge that no actions except to recover debts due the United States, the state of Connecticut, the expenses of the decedent’s last sickness or of his funeral charges, shall be prosecuted.
    Pursuant to this law that court on the 27th of December, 1883, adjudged that the intestate’s estate should be settled as an insolvent one, and that the plaintiff’s actions should be discontinued, and they were. By the statutes of Connecticut commissioners are appointed by the probate court to adjudge and determine claims presented against insolvent estates, pfiisuant to which, commissioners were appointed to determine the claims due from the estate of said Wetmore, and it was adjudged by them that there was due to the plaintiff from the estate on the 24th of November, 1883, the sum of $6,177.64, which adjudication became conclusive. The commissioners allowed preferred claims against the estate to the amount of $296.93, and unpreferred ones for $28,129.94. The assets of the estate are insufficient to pay the expenses of. settling it and the preferred claims, so that nothing will be realized on the unpreferred ones unless the land sought to be reached in the action is eventually recovered.

      H. R. Durfee, for app’lt; S. & L. M. Brown, for resp’t.

       Reversing 10 N. T. State Rep., 640.

   Bradley, J.

The question in limine is whether the plaintiff had any standing in court to enable it to attack, as fraudulent against the creditors of the grantor, the conveyance made by Abner 0. Wetmore to his wife, the defendant, through a third person, of the land in question, situated in this state 5 and that proposition arises on the fact that no execution had been issued and returned unsatisfied, founded upon any judgment recovered by the plaintiff upon the debt due to it from such grantor. The action certainly could not as a creditor’s bill under the statute be maintained, because recovery of a judgment and the return unsatisfied of an execution issued upon it are essential prerequisites for that purpose. 2 B. S., 173, § 38; Code, § 1871. And it has become the settled rule in this state not to dispense with those preliminary proceedings at law although it may be made to appear by evidence that no benefit could result to the creditor from them. Estes v Wilcox, 67 N. Y., 264; Adsit v. Butler, 87 id., 585. This is not founded upon any purpose of the statute to repeal or curtail the common law equity powers of the court, not inconsistent with the statute, to investigate the conduct of debtors in respect to their property in fraud of creditors, and to grant relief. The statute did not purport to do that, but provided that “The powers and jurisdiction of the court of chancery are co-extensive with the powers and jurisdiction of the court of chancery in England with the exceptions, additions and limitations, created and imposed by the constitution and laws of this state.” 2 R S., 173, § 36.' In some of the states the issue and return of execution preliminarily to the action in equity is not required when it clearly appears that it would be utterly fruitless; and the same doctrine has been declared in the United States supreme court. Case v. Beauregard, 101 U. S., 690. The rule in this state, in some sense limiting the exercise of jurisdiction of the court so as to bring within its application all cases having in their purpose or relief sought, the nature of statutory creditor’s bills, does not necessarily rest upon a want of equitable power of the court or its denial, but rather is adopted as a rule governing and regulating the exercise by the court of jurisdiction within its equitable powers. It has the merit of uniformity and in its effect relieves the case from any uncertainty as to what would have resulted from the use of an execution if one had been issued: And it is founded upon the doctrine that a court of equity will not take cognizance of a controversy which can be determined at law, and not until the remedy there is exhausted. Such has quite uniformly been the rule of the common law applicable to equitable jurisdictions. McDermutt v. Strong, 4 Johns Ch., 687; Hadden v. Spader, 20 Johns, 554. But this rule is not so unrelenting as to deny to a party the interposition of the equity powers of the court when the situation is such as to render impossible the aid of a court of law to there take the preliminary steps and produce what ordinarily may be treated as the condition precedent to the application for equitable relief. This seems to be the position of the plaintiff in its relation to the remedy which it seeks by this action. The plaintiff is a bank in the state of Connecticut, and Abner C. Wetmore, who also resided there, was indebted to it. He became insolvent and made an assignment for the benefit of his creditors to a person 'residing in that state.

The plaintiff commenced actions there to recover judgments on such debts against Wetmore, who died while they were pending, and the assignee was appointed administrator of his estate. The plaintiff sought to revive and continue the actions against the administrator, and thereupon the latter, as permitted by the law of that state, filed a plea in abatement alleging that the estate of Wetmore was an insolvent estate, in the course of settlement in the probate court, and that the plaintiff’s causes of action were not for debts due the United States or the state of Connecticut or for the expenses of his last sickness or funeral charges. The court in which those ■ actions were pending found Jhat the allegations in abatement were true, and directed that the actions abate and be dismissed. This was a denial, pursuant to the law of Connecticut, of any right of the plaintiff to continue or maintain any action there against the administrator, and the only determition he could have of the claim against the estate was through the action taken in that respect by the probate court, in which j urisdiction, exercised in the manner provided by statute, was exclusive. According to the prescribed practice, that court appointed commissioners in insolvency upon Wetmore’s estate, to whom the plaintiff’s claim was presented, and they by their report allowed it at the sum of $6,177.64. This determination of the commissioners became conclusive and binding upon the trustee as effectually as if it had been a recovery by action against him in a court of law. Loomis v. Eaton, 32 Conn., 550; Bailey v. Bussing, 37 id., 349; First National Bank v. Hartford Life Ins Co., 45 id., 22. Nothing more remained for the plaintiff to do in that state. There was a small amount of preferred claims, while those unpreferred amounted to upwards of $28,000, and the assets were insufficient to pay the expenses of the settlement of the estate and the preferred claims. The trial court finding these facts, also found that the conveyance before mentioned was made by Wet-more after his indebtedness to the plaintiff accrued, and was made without consideration and with the intent to defraud his creditors, and that at the time of his death Wetmore had no title to any property, real or personal, in the state of New York. The case jiresented is one in which the plaintiff could recover upon his claim no judgment entitling him to have an execution issued and returned. It is not, therefore, a case within the contemplation of the statute relating to creditor’s actions and support of the action is dependent upon the common law powers of the court of equity. They not being taken away by the statute, no reason appears why they are not available to give a party situated as the plaintiff is a standing in court. Chautauqua County Bank v. White, 6 N. Y., 236; Scott v. McMillen, 1 Littell, 302; 13 Am. Dec., 239.

The subject of fraud and trusts is peculiarly matter of equity jurisdiction, which is very comprehensive where the other tribunals cannot afford relief; and its want of it is not to he inferred from the novelty of questions presented. Hadden v. Spader, 20 Johns, 564; Lining v. Geddes, 1 McCord’s Ch., 304: 16 Am. Dec., 606; McCalmont v. Lawrence, 1 Blatch., 232.

In Adsit v. Butler the. principle applicable to equitable suits to reach property disposed of in fraud of creditors upon which the practice is founded is recognized to be that the remedy at law must first be exhausted, and reference is made to Bank v. Olcott, 46 N. Y., 18, where the rule is well stated. And it is upon that principle that such requirement in the nature of a condition precedent must be observed before seeking relief in equity. But when a party has done all that is possible for him to do to prepare the way for his case to equitable cognizance, he is not to be denied access to the only tribunal capable of granting relief, merely because he had proceeded no further than he was, without any fault or laches on his part, permitted to go. That would be repugnant to the maxim that “ there is no wrong without a remedy.” And while that maxim is not absolutely true, it expresses a principle, and it is for that, rather than precedent, that courts will seek in considering whether any or what remedy may be had in the administration of justice. And analagously applicable to the question under consideration is the doctrine announced in Shellington v. Howland, 53 N. Y, 371; Kincaid v. Dwindle, 59 id., 548, to the effect that when the right to recover a judgment against a corporation and the issue and return of execution which is a condition precedent to the liability of a stockholder under the statute, Laws 1848, chap. 40; 89 N. Y., 334, is defeated without fault of the creditor, the condition precedent is dispensed with. In Shellington v. Howland is cited Loomis v Tifft, 16 Barb., 541, which may not be in harmony with the later cases, but the question as there decided was applicable in principle to that in the case in which it was cited. That principle is broad enough to embrace within it for the purpose of remedy the variety of cases to which it may be applicable. .

The statute provides that an action may be brought by executors, administrators, assignees, or other trustees, to reach property transferred in fraud of creditors, Laws 1858, chap. 314, yet if such officer or trustee refuses to do so, a creditor beneficially interested may bring the action, including in it as a party defendant him so refusing. This is upon the principle of the maxim before mentioned. Harvey v. McDonnell, 113 N. Y., 526; 23 N. Y. State Rep., 501. And this rule, prior to that statute, was applicable to an action by a creditor of a deceased debtor represented by an executor or administrator. Bate v. Graham, 11 N. Y., 237; Hagan v. Walker, 14 How., U. S., 29. For the purpose of such an action by a creditor no judgment or execution is preliminarily essential. Harvey v. McDonnell, supra.

The plaintiff’s debt was as much the subject of adjudication as it could be made so in the state of Connecticut, and as effectually against the administrator as if rendered by a court of law. The denial to the plaintiff of equitable relief cannot, therefore, under the circumstances, rest upon the fact that he had no judgment in such court, execution thereon and its return unsatisfied.

The plaintiff had no remedy available through the Connecticut assignment, or assignee, in respect to the subject matter of this action. As a rule a statutory assignee or trustee in one state takes no title to the real estate of the assignor situated in another state. Osborn v. Adams, 18 Pick., 245; Hutcheson v. Peshine, 16 N. J. Ch., 167. The rule may be otherwise in respect to personal property, which in legal theory has no situs distinct from the domicil of its owner. It is, however, unnecessary to pursue the consideration of the nature of that assignment further than to say that its effect is so far controlled by the statute of Connecticut, to the effect that real estate not within that state was excepted from the operation of the assignment made as it was with a view to insolvency. It follows that the assignment would not have covered the land in question if, at the time it was made, the title had been in the assignor. And assuming that the conveyance to the defendant was fraudulent as against the creditors of the assignor, the defendant became a trustee ex maleficio for them in respect to the property; and the theory upon which relief is granted to creditors is that as between the debtor making the conveyance and his creditors, the fraudulent grantee takes by it no title. Moncure v. Hanson, 15 Pa. St., 385; Chautauqua County Bank v. Risley, 19 N. Y. 369.

Since this property did not come within his trust it is unnecessary to inquire whether, if it had been otherwise, he may, as the representative of the creditors, have come into the courts of this state under the act of 1858, although he could not have been required to do so.

While the right of an assignee in this state to thus represent the creditors of his assignor and in their behalf seek such relief is given by statute, it is a mere enlargement of his powers in respect to property only, which but for the conveyance would unaided by the statute come within his trust. Inasmuch as this land could not for any purpose be treated as within the subject matter of the trust created by the assignment amplified by the statute, there could be no support for remedy through the action of the Connecticut assignee in the courts of this state. This would be so, if there were no limitation to that effect expressed in the statute. But it does by its terms thus confine the action of an assignee for such relief to the subject of the trust within the assignment, as such trust is broadened in its effect and in the power of its execution, but not extended beyond the limits of the assignment, by the statute. Laws 1858, chap. 314.

There is a further question having relation to the character and extent of the relief which could be granted in this action. The plaintiff, having no lien upon the property, could not, after the death of Wetmore, obtain any preference over the other creditors of the deceased, and the action can be effectual only as one for the benefit of the plaintiff and such other creditors. The complaint proceeds solely in behalf of the plaintiff and demands relief for its benefit alone. Assuming that this was a defective pleading in its statement of the purpose of the action and relief, it was not a failure to state facts sufficient to constitute a cause of action, and the defect was available to the defendant only by demurrer or answer. Code, §§ 488, 499. This was not done, and for that reason the question was not presented to the court for consideration. Loomis v. Tifft, 16 Barb., 541.

As the defendant answered the complaint, judgment to be directed is not controlled by the relief demanded. Code, § 1207. And although the action appears to have been prosecuted for the benefit of the plaintiff alone, the court may direct such judgment as, upon the facts, should be rendered in behalf of the plaintiff and other-creditors. Thompson v. Brown, 4 Johns. Ch., 619, 643; Benson v. LeRoy, id., 651. This can be done (in the event of recovery by the plaintiff) by means of an interlocutory judgment, by which, in the manner directed, creditors may have the opportunity of presenting their claims with a view to the distribution of the proceeds of the property.

The final judgment was, therefore, improperly directed by the trial, court for the plaintiff in its behalf only, and was properly reversed by the court below, but the direction there of final judgment for the defendant was error.

The judgment of the general term should be reversed, so far as it was for the defendant, and modified by granting a new trial, costs to abide the event.

Follett, Ch. J. (dissenting).

A transfer of real or personal property which is fraudulent as to creditors, nevertheless divests the transferor of his title to the subject of the transfer, and he can. never recover it by action, nor thereafter vest by contract or by will a third person with any right to or interest in it, and upon his death no title or right of action in respect to it passes from him to his heirs or next of kin, nor does his administrator acquire any title to the property or right to recover it by virtue of any succession in interest. The fraudulent transferee holds the legal title as a trustee ex maleficio for the benefit of defrauded creditors, and they only, or some person representing them, can reach the property and subject it to the payment of the debts of the fraudulent transferor. When an insolvent of this state makes a voluntarjq or fraudulent conveyance of land and thereafter makes, within this state, a^general assignment for the benefit of creditors, to an assignee within this state, the latter acquires no right to avoid the previous voluntary or fraudulent conveyance by virtue of any title, interest or right of action derived through the assignment from the assignor, hut his right to maintain an action to set aside the previous fraudulent transfer is conferred solely by chapter 314 of the Laws of 1858. Southard v. Benner, 72 N. Y., 424. From the passage of this act, and until its amendment by chapter 487 of the Laws of 1889, the right to subject property fraudulently transferred to the payment of debts was, in case the transferor had made a general assignment, in his assignee; and in case he had died it was in his personal representative. Spring v. Short, 90 N. Y., 538; Childs v. Kendall, 30 Hun, 227; aff’d, 101 N. Y., 625; Lichtenberg v. Herdtfelder, 103 N. Y., 302; 3 N. Y. State Rep., 91; Harvey v. McDonnell, 113 N. Y., 526; 23 N. Y. State Rep., 501; Lore v. Dierkes, 19 J. & S., 144; S. C., 16 Abb. N. C., 47; Swift v. Hart, 35 Hun, 128.

It is insisted in behalf of the plaintiff that this Connecticut assignee did not acquire a right under the statute to set aside the conveyances and recover the avails of the land, because it is urged that the Connecticut assignment could not transfer to the assignee the title to land in this state. It has been shown, we think, that an assignee does not acquire his cause of action by virtue of the assignment, and the statute does not vest him with title to the property fraudulently conveyed, but with a chose in action, or with a right by an- action to subject it, through a judicial sale, to the payment of the defrauded creditors. The statute does not limit the right of action to an assignee under an assignment executed in this state, nor to an assignee residing within this state, and it was not the intent of the legislature to create a remedy for fraudulent conveyances by its citizens, and not a remedy for like practices by citizens of other states. The right of foreign assignees for the benefit of creditors to prosecute actions in this state has been frequently recognized by our courts. Slatter v. Carroll, 2 Sandf. Ch., 573; Ackerman v. Cross, 40 Barb., 465; Matter of Accounting of Waite, 99 N. Y., 433; Phelps v. Borland, 103 id., 409; 4 N. Y. State Rep., 233. The assignee of Abner C. Wet-more acquired the right under the statute to set aside the conveyance, and the plaintiff has neither alleged nor proved facts authorizing him to bring this action. It is not alleged that the assignee ias been requested, or has refused to bring an action, he is not made a party defendant, and this action is not brought to recover in the right of the assignee for the benefit of all of the defrauded •creditors, and it cannot be maintained. Haney v. McDonnell, supra. It is not now material to determine whether, under the laws of Connecticut, the administrator has succeeded to the rights of the assignee.

The judgment should be affirmed, with costs.

Judgment of general term reversed so far as it was for the defendant, and modified by granting a new trial, costs to abide event.

All concur, except Follett, Ch. J., who reads dissenting opinion, and Potter, J., not voting.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Brewster J. Allison et al., Ex’rs of George S. Allison.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Gifts.
    During the last four years of his life testator gave to his son Brewster checks to a large amount, the stubs thereof stating that they were “to assist him” and “to help him.” They were given voluntarily and accompanied by a statement that he was welcome to them. Testator was a man of ninety, and could not remember payments, but was never irrational and was able to draw a complicated receipt and attend to business, and shortly before his death attended as a director of a bank. Held, that a ■finding that testator was sane and the checks gifts was correct.
    (Dykman, J., dissents.)
    Appeal from decree of surrogate settling the accounts of executors.

      Calvin Frost, for app’lts; Garrett Z. Snider, for B. J. Allison, ex’r, resp’t.
   Barnard, P. J.

George S. Allison died at a very advanced age in 1884, leaving a last will and testament. By this will a large amount of property is specifically disposed of, and there is no general residuary clause. The evidence shows that the deceased gave checks to his son Brewster J. Allison in his lifetime for amounts which aggregate $68,734.34. These checks begin with the date of April 2, 1880, and end June 5, 1884. The testator died in August, 1884. The question is whether the sums represented by these checks were gifts. The testator lived with his son, and at the commencement of the list of checks, etc., was. about ninety years of age. He did his own business until after the date of the last check. He had lived with this son over sixty years. The larger part of the stubs, which are all in testator’s handwriting, state that the checks were given to Brewster J. Allison “to assist him” and “to help him." One states that the check was given to “help him at a birth day party.” These checks, in all amounting to $550, between October, 1880, and April, 1881, are stated to be loans, and one in October, 1883, “ to-B. J. Allison, present, $400.” The principal issues before the surrogate was as to the capacity of the testator between 1880 and the time of his death. The proof failed to show incapacity. There was a loss of memory; he forgot payments. He was garrulous on his services as a soldier in the war of 1812, but in October, 1882, he could write a complicated receipt and on the same day enter the receipt of the money and check, stating-accurately the amount of money and the amount of the check, and whose check it was, on his cash book, all in his own handwriting. He never was irrational. The oral evidence of Brewster J. Allison’s wife supports the gifts. She witnessed the delivery of the checks on repeated occasions. They were voluntary and generally accompanied with a statement that his son was welcome to the checks, and that if he was not he would not have given them to him. That he gave the sums to help his son, and that he wanted him to have the money in his lifetime. He made gifts of checks to his grandson, George S. Allison, to help him build a house, between September, 1883, and April, 1884. In July, 1884, he attended as a director of the Haverstraw Bank, and got credit at the store of W. S. Lane & Co. during the summer of 1884, got the bills, and “ he wanted to look at one and pay it right there.”

The conclusion of the surrogate as to the sanity of testator and as to the gifts of the moneys is fully supported by the evidence, and the decree should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., dissents.


author: Pratt, J.

text:
    The People ex rel. The Trustees of School District No. 25 of the Town of Hempstead, App’lts, v. The Board of Town Auditors of the Town of Hempstead et al., Resp’ts.

      (Supreme Court, General Term,, Second Department,

      Filed December 8, 1890.)

    Schools—Apportionment of school moneys.
    By chap. 691, Laws 1870, the board of town auditors of Hempstead is re - quired to apportion a part of the income from the fund arising out of the-sale of common lands among the school districts of the town on the same basis as the state moneys. After such an apportionment had been made the state supertintendent corrected the state apportionment and upon a subsequent appeal directed the town auditors to correct their apportion- - ment accordingly. Held, that even, if the superintendent had jurisdiction to review their action, they had no power to correct a past apportionment and ihandamus would not lie to compel them to do so, or to withhold moneys from one district in a subsequent year and pay them to another district for that purpose.

      Appeal from order denying application for a peremptory mandamus to compel the board of town auditors to comply with the interactions of the superintendent of public instruction and correct two apportionments of school moneys.
    The following is the opinion at special term:
    Bartlett, J. This application comes before the court upon the return of an order requiring the board of town auditors to show cause why a peremptory writ of mandamus should not issue commanding them, at their next meeting for the apportionment of money to the common schools under chapter 591 of the Laws of 1870, to correct the apportionment made to School Districts Nos. 1 and 25, on December 21, 1885, and J une 5, 1886. By these apportionments School District No. 1 received $154.70 which is claimed by the trustees of School District No. 25, and the purpose of this proceeding is to secure payment of that amount.
    By chapter 591 of the Laws of 1870, the legislature provided for the election of a town treasurer by the people of Hempstead. This officer was to receive, invest, deposit and disburse, as therein prescribed, all moneys arising from the sale of the plain or common lands, or from the sale or rental of any common land purchases or privileges belonging to the town of Hempstead. The same act declared that, “ the principal sum shall remain a permanent fund forever,” and also provided as follows:
    “ Sec. 8. The interest accruing after deducting the expenses of the office of the said treasurer shall be disposed of as follows: First, two-thirds, or so much thereof as may be deemed necessary for the common schools of said town, to be determined by the said board of town auditors from an inspection and examination of the last annual reports of the trustees and boards of education of said town, shall be apportioned among the several school districts of said town in the same manner and upon the same basis as the public school moneys of the state are apportioned; and the said treasurer upon receiving from the said board of town auditors a certificate of such apportionment, shall pay to the trustees and boards of education of the several school districts of said town the amount to which they are respectively entitled for the current year; second, the remaining one-third of interest or so much thereof as may be deemed- necessary by said board of town auditors, shall be paid by said treasurer to the overseers of the poor of said town, upon the certificate of said board, and appropriated and disbursed by said overseers, for the support of the poor of said town.”
    Harden City was formerly included in School District No. 1 of the town of Hempstead, and a branch school was maintained there.
    By Chapter 152 of the Laws of 1885, passed April 20, certain portions of the village of Harden City were constituted a new school district, to be known as No. 25. This district was organized in August, 1885. In the annual apportionment of the public school moneys of the state, however, for the school year 1885-1886, School District No. 1 received the same amount as though the new district had not been formed, and School District lío. 25 received nothing. Thereupon the trustees of School District lío. 25 appealed to the state superintendent of public instruction, and that officer, on November 30,1886, rendered a decision holding that the apportionment had been erroneous, and directing that School District lío. 1 should pay over to School District lío. 25 a part of the sum which it received in the apportionment of 1886; or in case of a failure to do so before the apportionment of 1887, that the share of School District lío. 1 therein should be correspondingly reduced and the share of School District lío. 25 augmented.
    Meantime, however, and before this correction by the state superintendent, the board of town auditors, acting under the authority conferred upon them by the statute relative to the interest on the fund derived from the common lands, had proceeded to apportion a part of such interest among the several school districts of the town, just as the public school moneys of the state had been apportioned and distributed. In so doing, they complied with the mandate of the law at the time. There is no dispute as to this point. But the contention of the relators is that, inasmuch as the apportionment of the public school moneys of the state for the school year 1885-1886 has been declared erroneous and has been corrected by the state superintendent, so far as these two litigating districts are concerned, it is the duty of the board of town auditors to correct their apportionment of the common land moneys accordingly; and that they should do this, in the only way they can do it, by withholding from School District lío. 1, on the next apportionment, a sum equal to the amount overpaid in consequence of the erroneous apportionment of the state moneys in 1885-1886, and turning this sum over to School District No. 25.
    The trustees of School District No. 25 endeavored to get the board of town auditors to take this course, but they declined. Then the trustees appealed again to the state superintendent of public instruction, asserting that he had jurisdiction to compel the board of town auditors to correct the apportionment and pay the new district the money which it claimed. On the first appeal, relative to the apportionment of the state moneys, the superintendent said there was some reasonable question as to the power of his department to correct the apportionment of the local trust fund applicable to school purposes, as provided by chap. 591 of the Laws of 1870, relative to the interest on the proceeds of the sale of common lands ; but it was not necessary to decide the question then. On the second appeal, however, the point was squarely presented, and the state superintendent determined it adversely to the board of town auditors, and made an order directing them to correct their alleged errors in their apportionment of the town moneys, so as to make such apportionment correspond with the apportionment of state moneys as corrected by the state superintendent, and provided, unless the reapportionments should be previously adjusted, “that said board at the time of the next apportionment and distribution by them of the town moneys to schools, shall withhold from any district which has been paid a larger sum than properly belongs to it, as shown by such reapportionments, the excess so paid, and shall pay to any district which has received less than its share, as shown by such reapportionments, the sum to which it may hereby be shown to be entitled.”
    I regard it as extremely doubtful, whether the state superintendent of public instruction has jurisdiction to review on appeal any action of the board of town auditors of Hempstead under chap. 591 of the-Laws of 1870. But in the view -which I take of the present case, it may be assumed for the purposes of this decision that the state superintendent may lawfully direct these town auditors to do whatever a court would direct upon the same state of facts. It will not be contended that he can go further. In my opinion, however, the functions of the board of town auditors are so limited by the statute under which they act that a court which commanded them to do what is asked on this application would command them to exceed their legal powers. The fact that the remedy would be a convenient method of correcting an error which the board of town auditors did not commit, and for which it is in no wise responsible, is not a sufficient argument in favor of such a course. The statute which prescribes the mode in which the board shall apportion the interest moneys derived from the sale of the common lands, that is to say, “ in the same manner and jipon the same basis as the public school moneys of the state are apportioned,” plainly contemplates a reference to the apportionment of the state moneys as made at the time when the auditors act in apportioning the town moneys. This is the standard by which they are to regulate their action, assuming the apportionment of the state moneys to be made according to law. Their safe and proper course is to apportion the town moneys as the state moneys are, in fact, apportioned. This they did in the case at bar. The town treasurer distributed the town moneys accordingly. Thereupon the board of town auditors, who had complied with the law in letter and spirit, became functus officio, so far as the money thus distributed was concerned. It had finally passed beyond their control and to those who, at the time it was paid, were, as against the board of town auditors, legally entitled to receive it. If at the time of such apportionment the trustees of School District No. 25 had demanded of the town auditors the portion of the town moneys which they now claim, the town auditors would have been bound to refuse the demand. Can the subsequent decision of the state superintendent in correcting the apportionment of the state moneys have a retroactive effect upon the completed action of the board of town aiiditors in apportioning and distributing the school moneys of the town?
    In considering this question it should be borne in mind that the board of town auditors is not authorized to do any thing with the town moneys which it concludes to apply to school purposes, except to apportion those moneys as the state school moneys are apportioned, and certify such apportionment to the town treasurer. No authority to correct any previous apportionment is conferred upon the board by the terms of the statute under which it acts. As has already been shown, such apportionment should correspond with the actual apportionment of the state school moneys for the same year. It might perhaps be held that the direction by the state superintendent to correct in 1887 the mistake made in the apportionment of the state moneys as between these school districts in the school year 1885-1886 became a part of the apportionment of the state moneys in 1887; and, therefore, if the town auditors, in 1887, had made the correction now sought, they might not have exceeded their statutory powers,’ inasmuch as in apportioning the local fund they would have followed the apportionment of the state moneys for that year. It seems to me that to withhold any portion of the town moneys from one district to pay it over to another at any period later than the year in which the correction directed by the state superintendent in the apportionment of the state moneys was actually made, would be to do more than the town auditors may lawfully do under the statute: Their duties are merely to take and certify an apportionment of the town moneys after the manner of the apportionment of the state moneys. The statute evidently contemplates annual action on their part; for upon receiving their certificate the town treasurer is directed to pay the trustees and boards of education of the several school districts “the amount to which they are respectively entitled for the current year.” When they have apportioned the town moneys as the state moneys are apportioned, and have made their certificate to the town treasurer, and he has paid out the amounts as therein directed, I think the town auditors have exhausted their powers under the statute with reference to that particular apportionment Nor does it seem to me that the town auditors in a subsequent year, when the personnel of the board may have wholly changed, can correct an error into which their predecessors may have fallen, unless possibly in the case already suggested, where in that very year the state apportionment is modified in accordance with a decision of the state superintendent, and therefore the auditors in making a similar correction in the town apportionment might be said merely to follow the apportionment of state moneys as then actually made. To attempt to rectify an alleged mistake, however, several years after the error in the state apportionment which led to the mistake has actually been corrected, is not to apportion the town moneys now to be divided as the state moneys are now to be apportioned, but to exercise an independent power of correcting past errors in the action of the town auditors, which I do not think is conferred upon the board by the statute, either expressly or by fair implication.
    It is argued that the members of the board of town auditors are trustees of moneys for the benefit of common schools, under title III, second article, §§ 15, 16 and 17, of the Consolidated School Act, 2 E. S., 7th Ed., 1150, and hence are subject to the supervision and advice of the superintendent of public instruction. See. 17. These provisions, however, seem to have no application to the fund derived from the sale of the common lands of Hemp-stead. That fund is dealt with by the legislature in chap. 591 of the Laws of 1870, and apparently was not intended to be brought under the general laws of the state relating to trusts for schools. Town Auditors are not mentioned in the provisions of the consolidated school act above cited as possible trustees thereunder, and indeed the Hempstead town auditors are not vested as trustees or otherwise with the legal title to any of the money they apportion. But even if they can be regarded as trustees over whom the state superintendent has supervisory authority, it is quite clear that neither he nor the court can compel them to take any action which they might not lawfully take without the exercise of any constraint upon them; and I have already expressed the opinion that they do not possess any power to reserve a certain sum from the town moneys at the next apportionment, which would otherwise go to school district Ho. 1, and devote it to the payment of the Garden City district, in order to correct an error made in 1885-1886, and corrected by virtue of an order of the state superintendent, so far as the apportionment of the state school moneys were concerned, in 1887.
    To the extent which has been indicated, I am constrained by my view of the law to differ from the conclusions reached by the learned and accomplished superintendent of public instruction. If any judicial remedy exists in behalf of the relators, it would seem to be by an action against the trustees of school district Ho. 1 for money had and received; but whether the relators can maintain such a suit or not, I am satisfied that a direction to the board of town auditors to do what is desired in this proceeding would be a direction to exercise greater authority than is bestowed upon the board by chapter 591 of the Laws of 1870.
    For these reasons the application for a peremptory writ of mandamus must be denied, with ten dollars costs.

      Asa Bird Gardiner, for app’lts; James 8. Allen (A. K Weller, of counsel), for resp’ts.
   Pratt, J.

The opinion at special term so fully discusses all the questions of law and fact involved in this matter that it seems useless to write another opinion, which must necessarily go over the same ground. Indeed, unless the decision of the state superintendent is res adjudicata upon the whole matter, it is doubtful that the relators are legally or equitably entitled to the moneys sought to be recovered here, from the fact that the report upon which the so-called corrected apportionment was made is claimed to be informal, irregular and false.

If the relators have any remedy it is by an action in which all the facts may be conclusively settled.

Order affirmed upon the opinion rendered below, with fifty dollars costs.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J.

text:
    William P. Willis et al., App’lts, v. Aurelius P. Sharp, Ex’r, Resp’t.

      (Supreme Court, General Term. Second Department,

      Filed December 8, 1890.)

    1. Receiver—Restitution or unauthorized raiments.
    A receiver was appointed in this action and directed to pay the judgment out of defendant’s estate. Pending appeal from the order of re ceivership, other actions were brought by plaintiffs and others, the judgments in which extended the receivership and directed him, after reserving the amount of the judgment herein, to pay such judgments. The receiver did not reserve such amount, hut paid out all the fund on the subsequent judgments. The order herein having been reversed for error, Held, that such payment having been unauthorized the receiver should he required to restore to defendant the amount of the judgment with interest,
    2. Same.
    Plaintiffs, having instituted the proceeding, should be held liable for the expenses of the receivership and should he required to restore the amount received by them on their second judgment.
    Appeal from order requiring the receiver herein to restore to defendant the amount of the judgment in this action with interest, and also requiring plaintiffs to restore the amount of the judgment recovered by them in a subsequent action to which the receivership was extended, with the costs of such receivership.
    The following is the opinion at special term:
    CuLLEisr, J.—-In suit No. 1, between these parties, Mr. Eitch was appointed receiver of the estate in the hands of the defendant, as executor, and out of such funds directed to pay the judgment previously recovered. From the order appointing such receiver and directing the transfer of the fund to him, the defendant appealed, and the order was reversed by the court of appeals. Pending the appeal the defendant complied with the order and transferred the fund to the receiver. During this period the plaintiffs instituted a second suit, and the creditors, Cutter et al., instituted a third suit against the defendant. By the judgments recovered in these two last-named actions the prior receivership was extended, and the receiver directed out of the funds in his hands after reserving the amount of the first judgment (then on appeal to the court of appeals), to pay the amount of such judgments. This application is that the plaintiffs in this action and the receiver restore to the defendant the whole fund so transferred. The answer made to the application is that the receiver has paid out the whole fund less his commissions, etc., on account of judgments in action No. 2, and in Cutter et al. v. Sharp, and that such judgments have not been appealed from, but remain in full force; while the order appointing the receiver was reversed, the court of appeals do not seem to have held it void. I shall assume, therefore, it was valid though erroneous. If this view be correct, the receiver, being an officer of the court, should not be liable personally where he has complied with the orders of the court but the defendant should look for restitution to the plaintiffs who have received the fund. But it appears here that the receiver instead of paying the judgment in Willis v. Sharp, No. 1, or retaining moneys sufficient for the purpose, paid out all the fund on account of judgment No. 2 and judgment in Cutter v. Sharp. As the plaintiffs’ attorney was the same in all these actions, I assume it was with the assent of the parties and it may be suspected that this was done to avoid the effect of an adverse decision on the appeal in this action, as no appeal was taken in No. 2, nor in Cutter v. Sharp. Nevertheless, this was not only unauthorized, hut in contravention of the terms of the orders and judgments of -this court and the defendant cannot be prejudiced thereby as it is not alleged that he assented to it. The receiver must, therefore, restore the amount of such judgments with interest from the time of the judgment and look for indemnity to the parties who induced this action.
    The next question is as to the liability of the plaintiffs to make restitution. They instituted the proceeding but unless the receivership was void I think they should not be liable for the whole fund regardless whether they have had the benefit of it. They should be held liable for the expenses of the receivership, in my opinion, for the reason that they instituted the proceedings for the collection of their judgment and the case is analogous to the recovery of money paid to the sheriff on an execution on a judgment subsequently reversed, where it would seem that recovery can be had for the whole sum paid on the execution, which would include the sheriff’s fees. Kidd v. Curry, 29 Hun, 215 ; Sturges v. Allis, 10 Wend., 354. In action Ho. 2 the judgment did not provide for a receiver of the estate, and the payment of the recovery by the receiver. That was directed by an order made subsequent to the judgment. The money had already been taken from the defendant by the order in this action. That order has been reversed. As it was the foundation of the proceeding by which the plaintiffs obtained the amount of the second judgment, I think on its reversal the title of plaintiffs to the moneys fails, and they should make restitution. The motion granted to the extent indicated, with ten dollars costs. As to the remainder of the sum paid over to the receiver, the defendant must proceed against Cutter et al.

      Walter S. Logan, for app’lts; Alexander V. Campbell, for resp’t.
   Dykman, J.

The order appealed from should be affirmed, with ten dollars costs and disbursements, on the opinion of the judge at special term.

Barnard, P. J., and Pratt, J., concur.


text:
    Thomas Henderson et al., Resp’ts, v. Benoit Wasserman, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)
    1. Sale—Delivery.
    Plaintiffs’ custom was to deliver the materials for defendant to their teamsters, with a slip containing the contents of the load, for which they obtained receipts. In an action for the value of goods so sent, it was proved that the items in the bill in question were loaded and sent to defendant’s house, which was in sight of the dock; that one of the plaintiffs saw a part of the articles carried there, and that defendant had said the bill was all right. Held, sufficient to carry the whole bill to the jury on the question of delivery.
    2. Same--Liability of owner of building.
    Defendant settled a prior lien for materials furnished to the contractor, and promised to pay for all furnished thereafter, and requested plaintiffs to furnish whatever was needed by the contractor. Seld, that defendant was the only person legally liable for such material,without regard to whom the goods were charged to, or against whom the lien therefor was filed.
    Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motion for a new trial.

      Action to recover for building materials sold and delivered by plaintiffs to defendant.

      Theo. Burgmyer (F. E. Dana, of counsel), for app’lt; Archibald Mutch (Henry A. Monfort, of counsel), for resp’ts.
   Barnard, P. J.

The proof of the delivery of the articles was sufficient. The plaintiffs were dealers in building materials. The defendant was building a house, within sight of the plaintiffs’ dock, about a quarter of a mile off. The course of business was for the plaintiffs to deliver to teamsters the materials with a slip containing the contents of the load, with instructions to get a receipt from them at the building. The plaintiff Pearsall occasionally would help unload these shipments. The receipted slips were used at night as the basis for the entry on the books, and the books are •proven to be correct as called for by the slips. There is proof that an amount of brick was delivered at defendant’s house fully up to the items on the bill. The items of the bill are proven to have been loaded for the defendant’s house, and sent there by the teamsters. A part of the articles were seen to be carried there by the plaintiff, Pearsall. The defendant was informed of the amount of the bill, and after an interview with his contractor told the plaintiff “it was all right, that I should have my money.” The material was delivered at defendant’s house by the plaintiffs’ teamsters. This proof was sufficient to carry the whole bill to the jury upon the question of delivery. The amount of the bill was not’ disputed by the evidence, except that defendant denied his liability. This was a question of fact as to which the parties were at variance. The plaintiffs’ proof was to the effect that the defendant had contracted with one Mills. The plaintiffs sold Mills materials for the building and Mills failed to pay, and plaintiffs filed a lien on the lot. Then the defendant paid the lien and promised the plaintiff that he would pay for all materials to be furnished thereafter, and requested the plaintiffs to furnish whatever was needed by Mills for the building. The defendant denied this entirely.

The evidence to support the theory of plaintiff Pearsall and defendant is of no importance. The jury found for the plaintiff. If the plaintiff’s testimony be taken as the truth, the verdict must stand. There is proven a direct contract upon the part of the defendant to buy the goods on his own credit. It is of no consequence to whom the goods were charged or against whom the lien was filed. These facts are evidence as to the credibility of Pearsall, but assuming a contract between the plaintiffs and Wasserman, the owner, for the purchase of the material, Wasserman is the only one legally liable upon the contract.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J. (dissenting.)

text:
    Grant B. Taylor, Resp’t, v. P. Elbert Nostrand, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Corporations — When director liable for services performed for.
    Plaintiff was directed by defendant, who was a director, secretary and engineer of a water company, to procure contracts for lands for such, company, pursuant to a resolution of the company. Subsequently, he was directed by defendant to take such contracts in the name of one A. as trustee, for which direction no authority of the company was clearly shown. Held, that by reason of such change plaintiff had no claim on the company for his services and that defendant was liable therefor.
    (Pbatt, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    This action was brought by the plaintiff to recover for services rendered by the plaintiff in securing options or contracts for the purchase of real estate in the town of Highlands, Orange county, JST. Y. The defense was a general denial, and also that the services were not rendered to the defendant, but to the Bamapo Water Company. The issues thus raised were referred to a referee, who decided in favor of the plaintiff, upon which report judgment was entered, and from which defendant appeals. Under a ■stipulation, the value of the services as found by the referee are conceded to be correct, and no appeal is taken therefrom, the appeal being confined simply to the question whether on the proof made the defendant is liable. The evidence shows that on the 14th of •January, 1889, the defendant wrote the plaintiff a letter requesting him to call on him in New York, with reference to “ our water mattersthat in response to such letter the plaintiff did go 'to New York and there saw the defendant and one Lamont, and received instructions from them to secure contracts for the conveyance of lands in the town aforesaid ; that in pursuance of such instructions from time to time, extending over a period of two months, the plaintiff was almost continually employed in securing these contracts; that he almost daily reported the result of his negotiations, and received directions in whose name to make the contracts. Twelve contracts were executed, but not one was 'taken in the name of the Bamapo Water Company. On the contrary, by direction of the defendant or with his approval, all were made in the name of “.William S. Andrews, Trustee.” A resolution of the water company was offered in evidence directing •contracts to be made in the name of the company, but no authority was shown for the contracts being made in any other name, save a statement of Lamont. He says, “ The taking of the contracts in the name of William S. Andrews, trustee, or individually, was never authorized by the Bamapo Water Company in any way, except by myself, the fully'authorized agent of the Bamapo Water Company.” No evidence on the part of the defendant of the agency of Lamont was given, nor was Andrews’ connection with the company in any way shown. The contracts were under seal, and the ■company’s directions included the sealing of them for it.
    The defendant offered in evidence a certificate showing that "the articles of incorporation of the Bamapo Water Company had been filed with the secretary of state, but no evidence was offered of their having been filed in the county where the business was proposed to be carried on.
    The referee decided that the plaintiff had knowledge that he was employed by the Bamapo Water Company, but that in directing the contracts to be made and sealed in the name of Andrews as trustee the defendant exceeded his authority, and is", therefore, liable to the plaintiff for his services. He- also found that the defendant had failed to show that his alleged principal, the Eamapo Water Company, was a duly organized corporation, and that he was also personalty liable on that ground.

      James S. Allen, for app’lt; Howard Thornton, for resp’t.
   Barnard, P. J.

It seems clear from the evidence that theEamapo Water Company was nothing but an appearance. The defendant was in point of fact all there was of it except the form of a certificate of incorporation which was filed in the secretary of state’s office. The defendant was the promoter of the undertaking or at least an important member of the company who were promoting the enterprise. The defendant was employed to take title or options for land in the name of the company. He did take the same in the name of one Andrews as trustee. No authority was shown given by the company creating Andrews ■ trustee or authorizing the title or contract to be taken in his name. The defendant directed the change and the lands affected thereby were the lands in and about which the plaintiff rendered the service. The defendant justifies the change by reason of the direction of one Lamont No sufficient power to direct the change was proven in Lamont. He testifies that he was authorized, but no resolution of any board of directors or trustees was proven to that effect. No doubt it was safer for the promoters to have control of the-contracts, and in the unsettled state of the company the defendant and Lamont made a change of the mode of transfer which was at first prepared. By the change the plaintiff had no claim on the company and as a consequence thereof he has one against the defendant, who ordered the change.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.

Pratt, J. (dissenting.)

This is an appeal from a judgment, entered on the report of a referee in a suit for services claimed by the plaintiff to have been rendered to the defendant The issue was whether the services were rendered to the defendant or to coi’poration known as the Eamapo Water Company.

It appeared in proof that the plaintiff was employed as agent of the Eamapo Water Company in making contracts on property for that company by a resolution duly passed, and notice of such appointment was duly given to the plaintiff and he rendered the services under such appointment, and charged the same to that corporation.

It appears that plaintiff had not only previously rendered services to that company for which he had been paid, but the services for which this suit was instituted were specifically rendered under the following paper:

“New York, January 15, 1889.
“ Mr. Grant B. Taylor, of Newburgh, is hereby appointed agent, of the Eamapo Water Company for the purpose of making contracts on property necessary for our purposes in the Fort Montgomery district, in Orange and Rockland counties, in accordance with printed contracts furnished by the company.
“George A. Evans, President.”

It also appears that plaintiff knew that defendant was connected with and agent for the Ramapo Company.

There is no proof that the last-named company ever repudiated .any of the contracts made by the plaintiff for land, or denied its liability for the plaintiff’s services.

The plaintiff claims, however, that the defendant exceeded his .authority in directing him to take contracts in the name of W. S. Andrews, trustee. As to this it may be said that if such a change was authorized or acquiesced in by the company, it would not .affect the liability of the company for his services. It can fairly be inferred from the testimony that such change was authorized, as Mr. Lamont testified without contradiction that he gave the orders that certain of the contracts should be made in the name of Andrews, trustee, and that he (Lamont) was the agent of the company for every purpose connected with its business. Again, as it appears that the plaintiff made the contract, he had no right to follow any instructions which were not authorized by the company.

It seems to be conceded that the services were rendered for the Ramapo Company, and that the defendant should have judgment, except for two reasons: First, that defendant had exceeded his authority, and, second,' that he did not prove that the Ramapo Company was duly incorporated.

The first we have already answered; the second is a matter that was entirely immaterial so far as the defendant was concerned.

The plaintiff made his contract with that company, and it was -a matter for him to ascertain before he made the contract of employment.

The plaintiff gave that company credit, and it having employed him assuming to be a corporation, it was estopped from denying that it had not legal capacity to make the contract. However, for all purposes in a suit by plaintiff to recover for these services, it was a legal corporation.

It follows that the judgment must be reversed.

Judgment affirmed, with costs.


text:
    James H. Moran, App’lt, v. The Board of Trustees of the Village of White Plains et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    "Municipal cokpokations—Contracts—Sewers.
    The hoard of trustees advertised for bids for building a sewer, the specifications for which included house connections, but without any estimate of quantity of pipe for such connections. Bids were received from M. and Q-., the former of which, exclusive of the house connections, exceeded that of G. by $1,600; but the bids on such eonnections were such that, including them, G.’s bid exceeded M.’s by $3,000 on one street alone. The board rejected G.’s bid as unbalanced and suggestive of fraud, and awarded the contract to M. Held, that the house connections were a part of tlie hid and contract, although the individual owners of the houses were to pay their cost, but even if they were not, the board had the right to award the contract to M. as the lowest responsible bidder, and that their action was not such an abuse of power as to constitute waste entitling a taxpayer to interfere.
    Appeal from judgment dismissing the complaint.
    This is an action commenced by a taxpayer, under chapter 531 of the Laws of 1881, to restrain the board of trustees from building four-inch house sewers and a system of sewerage “ other than through an acceptance of the bid of Otto H. Greorgi,” on the ground that Georgi was the lowest responsible bidder.
    By chapter 609 of the Laws of 1889, the board of trustees of the village of White Plains was authorized to adopt and establish, subject to the approval of the state board of health, a permanent system of sewerage and drainage. After receiving such approval the board was authorized to construct the sewers and was directed to let the contract “to the lowest responsible bidder.”
    Having made the preliminary surveys and employed the necessary experts and engineers, maps and plans were prepared, the-present system was adopted by the trustees and approved by the state board of health.
    The necessary specifications were prepared and given to all persons desiring to bid for the construction of the work.
    No reference is made in the statute nor in the above estimates to house sewer connections, but the specifications contained the statement that they should be laid four inches in diameter from each Y branch in the street sewer to the curb.line on such streets-as the board should direct at a price stated in the proposal. The blanks for proposals had this item of 4-inch house sewer pipe; added to the above items, but without any estimate of quantity, and bids upon it were accordingly made at so much per foot.
    The lowest bid on the above estimates was that of Otto H. Georgi for $158,078.80, and the next lowest that of John 0. Merritt for $159,690.03. Georgi bid 80 cents per foot for 4-inch house sewer connection, and Merritt -35 cents per foot. Both bidders complied with all the conditions required of them to obtain the contract.
    The counsel of the board having advised them that they had no power to construct house sewer connections, they entered into' a written contract with Merritt that he should do the work in the-estimates for the village on his bid and build house connections-for individuals at his bid price of 35 cents.
    Prior to awarding this contract the board rejected Georgi’s bid on the ground that it was' unbalanced and suggestive of fraud.
    The expense of the house connections on Eailroad avenue alone, at the rate of Georgi’s bid, would exceed the cost under Merritt’s bid by the sum of $3,000.

      Edgar A. Turrell, for app’lt; H. T. Dykman, for board of trustees, resp’ts; Wilson Brown, Jr., for John O. Merritt, resp't.
   Pratt, J.

The idea of a sewer in a city or village implies its-use for the purpose of a drain for the houses, and it is more convenient, a great saving of expense, and avoids the tearing up of the streets if the connections are made at the time the sewers are built.

If the bid in this case is made to include the house connections, then the bid of the defendant Merritt was much the lowest. We think it was a part of the bid and contract, and that the contract was properly awarded to him.

The fact that the individual owners of the houses to which the connections were to be made were obliged to pay the expense of such connections was immaterial.

The trustees were acting for the people, and it was their duty to weigh all the circumstances and render such a judgment as would best carry out their trust.

The specifications included the house connections, and there can be but little doubt but that upon the face of the bids Merritt was the lowest bidder; but if the house connections are not to be regarded as included in the contract, the trustees had the right to award the contract to Merritt as being the lowest responsible bidder.

It is beyond question that the trustees acted in good faith and for the best interest of the people whose agents they were, and it, is, therefore, a mere question of power under the statute that is challenged by the plaintiff.

The difference between the bids was small, and the trustees, were called upon to exercise their judgment as to which was the lowest responsible bidder in view of all the circumstances.

As was stated in the case of Martin v. The New Capitol Commissioners, 55 How. Pr., 118: “Efficiency and promptness in doing the work must depend largely upon the man who does it, having-reference to his ability, integrity and responsibility. The board was authorized to discriminate between the bidders.” “ So long as there has been no abuse of discretion, but only honest action to carry out the legislative will, the court will not interfere.”

The bid of the plaintiff was well calculated to excite a suspicion of bad faith, and cause the trustees to hesitate and seek the advice of their counsel and engineers, and it was only after such careful investigations the decision was made. Such a determination is quasi judicial and not the subject of review in the courts. People ex rel. Coughlin v. Gleason, 22 N. Y. State Rep., 103.

It must be borne in mind that this action is in the nature of one of waste, and unless a gross abuse of power is shown the action of the board must stand.

It was the duty of the board of trustees not only to take measures for building the sewer as required by the act, but to use reasonable care to protect individual owners of the buildings to be connected with the sewers. It was not reasonable in order to save the small sum of $1,600 upon the main contract to permit the owners of buildings along the sewer to be robbed by having to pay prices more than double their value for house connections.

There is no merit in this action, and the judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    In the Matter of the Probate of the Codicil of Abraham Dates, deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Will—Probate—Evidence of handwriting of witness.
    One of the w tnesses to a codicil left home and was absent at the trial. It was shown that contestant’s attorney loaned him some money; told him he would be attached if he did not return, and subpoenaed him; that the witness said he was going gunning and would be hack in time for the trial, and that he was then out of the state. Held, that no inference was possible but that he was induced to go away by the contestants, and that proof of his handwriting was, therefore, properly received.
    3. Same—Former adjudication.
    A decree rejecting a will or codicil is not binding on a person who was not cited to attend the hearing on which such decree was rendered.
    3. Same—Testamentary capacity.
    Testator stated to his attorney the contents of his will and told him he had heard bad accounts of his son and wished to change his will so as to cut down the gift to him to a life estate, and make S'milar changes as to his daughters. The attorney recommended a codicil, which was drawn and executed. The reports as to the son were well founded. Held, that testator was competent, and the decree admitting the codicil to probate should be sustained.
    Appeal from decree admitting to probate a codicil to the will of testator.
    The proceeding was brought by the guardian of Jennie D. Vanderwater, who was born after testator’s death.
    In a prior proceeding instituted jn 1882, the will was admitted to probate and the codicil rejected.
    The following is the opinion of the surrogate:
    Hufcut, S.—In the year 1882 a proceeding appears to have been had in this court upon the petition of the executors of the Dates will, that a codicil thereto dated September, 26, 1882, be admitted to probate. The testimony taken upon that proceeding shows that neither of the subscribing witnesses were asked as to the competency of the testator to make the codicil at the time of its execution; the codicil changed the will in that children of the testator were by the codicil to have the use only of the testator’s lands, and upon the death of the children the lands were to go .to the testator’s grandchildren. The petitioner is the general guardian of Jennie D. Vanderwater, an infant grandchild of Dates, the testator, and bom subsequently to the above mentioned proceedings, in the year 1882. An examination of the proceedings and evidence upon that hearing shows an apparent hostility to the proof of the codicil by all the parties then concerned, and that no one asked of the principal witnesses such questions as might prove such codicil as a valid adjunct to said will, and there was a failure of proof. This former proceeding and its evidence were put into this case by the contestants, they offering the same, and it not being objected to, it was received.
    Upon this present contest before me the subscribing witness, J. S. Van Cleef, was sworn and given an exhaustive examination by each party to the contest. The evidence of this witness shows that there can be no reasonable doubt left of the fact that Abraham Dates was on the 26th day of September, 1882 (the time said codicil was made), of sound mind and memory, and not under any restraint, and that he then executed said codicil. In this Mr. Van Cleef is fully corroborated by other witnesses; in fact the whole case runs that way, as all the witnesses concur that he afterwards talked about having made said codicil, and that he knew what its provisions were.
    The contestants made demand that Eli Masten, the other subscribing witness, be produced for examination in this proceeding,, and object to the admission to probate of such paper as a codicil to the will because the proponents have not so produced him.
    The evidence shows that it is not the proponents’ fault that they have not produced him; that they could not with due diligence find the absent witness within this state or elsewhere. Upon the last hearing a letter was produced from said witness from Linden, New Jersey, but the examination of Mr. Frank L. Akerley, one of the attorneys for the contestants, shows that he had good knowledge of the departure of the witness from his home in Pleasant Valley, a short time before this trial was to begin, that he, Akerley, went with him to New York, loaned him $25 here before he left, and let him have more in New York; he says he let Masten have a little less than $100. From Mr. Akerley’s former connection with this case, and his evidence given on this trial, it is plain that the absence of Masten from his home at this time was at the instance, and was in the main procured by the said attorney for the contestants herein, to have such witness so absent himself and stay until this trial was over. The paper so produced as a, codicil to the last will and testament of said Dates is well proven, and the statutory requirements as to proof have been fully complied with under these circumstances, the witness Masten was not here nor procurable by the proponents, but the contestant’s attorney having taken this way of managing his client’s case, procuring the absence of the witness, the client cannot complain that he is not here, and the demand that he must be produced for examination is without avail; the paper produced having been satisfactorily proven by lawful evidence, the same should be admitted to-probate as a codicil to the will of Abraham Dates, and the proponents shall have costs of this proceeding.

      Frank L. Akerley, for app’lts; Ransom Baker, for resp’t.
   Barnard, P. J.

On the 4th of December, 1889, a citation to the parties interested in the estate of Abraham Dates was returnable. The parties appeared. It was proven that Eli Masten, one of the witnesses to the codicil, left his employment at Pleasant Valley in Dutchess county, without assigning any reason. He obtained the permission of his employer to go away if he got a substitute; saying that he was going to “ take a little trip around.” It was further proven that the attorney for the contestants met the witness Masten in New York by arrangement, and “loaned him a little money,” a trifle under $100. The witness told the attorney thas he was going gunning, and would be back on the 4th of December for the Dates case; and was told by the attorney for contestants that he would be attached if he did not return; and he was subpoenaed by contestants. From, this evidence no other inference is possible but that the witness was induced to go away by the contestants, and the surrogate therefore properly received proof of handwriting of the witness. He was out of the state. “ I have known him (swears the attorney) to go to Connecticut ” on a vacation, and it was this vacation that he was induced to take at this time. Section 2620, therefore, authorized the taking of proof of “the handwriting of the testator and of the subscribing witnesses.”

It appeared that the testator left a will and codicil. By the will he gave his children absolutely. By the codicil he gave only a life estate with remainder to the children of the devisee. The petitioner was not cited to attend the proof of the will and codicil. She is therefore not bound by the former adjudication. Section 2627, Code.

The testator was competent. One of the witnesses was the lawyer who drew the will and codicil. There is no question made as to capacity at the time the will was .executed. There can be none as to the capacity of the testator at. the execution of the codicil. The testator sent for the lawyer. He stated to him generally the contents of the will; told him that he had heard bad reports of the conduct of his son and wished him to make a change in his will so as to cut down the gift to the son to a life estate and also to make the same change in regard to his two danghters. The lawyer recommended a codicil, which was drawn and executed. There is no sufficient evidence to rebut the plain and convincing testimony of the attorney, J. Spencer Yan Gleef, who drew and attended to the execution of the instrument. The change was suggested by the testator and was at once drawn and executed. The reports as to the son which he gave as a reason for the change were well founded and the testator’s intentions ought to be carried out. The decree of the surrogate admitting the codicil to ' probate should be affirmed, with costs against the appellants personally.

Dykman and Pratt, JJ., concur.


author: Per Curiam.

text:
    Julia A. Percival, App’lt and Resp’t, v. Edward S. Percival, App’lt and Resp’t.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    "Divobcb—Alimony.
    The general term has power to review the discretion exercised hy the special term in allowing a certain amount to the wife, in an action hy her for divorce, “for repayment of sums expended hy her in her support and maintenance since the commencement ” of the action, and strike out the allowance as improridenily allowed under all the circumstances, but it has no right to do so upon the ground that the lower court had no power to allow it.
    Cross appeals from a judgment of the general term of the supreme court in the first judicial department, modifying and affirming as modified a judgment entered upon the decision of the court at special term and also affirming certain orders of the •special term.

      Raphael J. Moses, for pl’ff; William J. Lynch, for def’t.

       Affirming 14 N. Y. State Rep., 255.

   Per Curiam.

The case of Beadleston v. Beadleston, 103 N. Y., 402; 3 N. Y. State Rep., 634, upon which the general term seems to have relied in deducting $300 from the judgment of the special term, has no application to this appeal, because the subject there under review was an order made pendente lite, but after the referee had made his report which convicted the wife of adultery, although no judgment had been entered.

This court held that the power of the special term, under those •circumstances, was confined to such allowances as were necessary to enable the wife to “ carry on or defend the action,” and that there could be no necessity for an allowance to make a defense that had already been made. In this case the special term as a part of its final judgment of separation from bed and board in favor of the wife, awarded her $300 “ for repayment of the sums expended by her in her support and maintenance since the commencement of” the action. It was the duty of the defendant to support his wife and as he failed to discharge that duty after suit was instituted against him, she was compelled to procure and expend money for that purpose. Upon the termination of the action the court in rendering judgment for the plaintiff, had the power. to give “such directions as the nature and circumstances of the case” required. The general term had power to review the discretion exercised by the special term and to strike out the $300 as improvidently allowed under all the circumstances, but it had no right to do so upon the ground that the lower court had no power to allow it. Tilton v. Beecher, 59 N. Y., 176. In the case cited the order stated that it was made “ on the ground that the court had no power to grant the same ” and as we understand the rule, unless it appears in the record, of which the opinion forms no part, that the action of the court was based upon a want of power, we cannot review it. Titus r. Orvis, 16 N. Y., 617, 618; Tohnan v. S., B., & N. Y. R. R. Co., 92 id., 353, 356.

“ It is a fundamental rule governing the review by one tribunal of the proceedings of another that orders or decisions resting in discretion are not review able.” Wavel v. Wiles, 24 N.Y., 635, 636.

The order of the general term may have been made, so far as the record discloses, in the exercise of a conceded discretion, and, if not, it was the duty of. the appellant to procure it to be so settled as to show that it was not.

We think that the judgment and all of the orders should be affirmed, without costs in this court to either party.

All concur.


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    Isaac Hampton, App.’lt, v. Martin S. Hamsher, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    Highways—Duty of commissioner in apportioning highway labor.
    Where the commissioner of highways has jurisdiction to assess a land owner, it is Ms duty to apportion the number of days labor to be rendered by him according to the valuation of Ms estate as it appeared on the last assessment roll, and he is not liable to such owner for the value of labor rendered by him, under protest, in satisfaction of the assessment, where it had been erroneously made by the assessors through ignorance of changes in the statute governing such proceedings.
    Appeal from a judgment of the general term of the supreme court of the fifth judicial department, reversing a judgment of the county court of Livingston county, and affirming a judgment of a justice of the peace.

      John M. McNair, for app’lt; Charles J. Bissell, for resp’t.

       Affirming 10 N. T. State Rep., 769.

   Per Curiam.

Section 4 of title 2 of 13 of 1 of the Revised Statutes was amended by chapter 287 of the Laws of 1871 so that it read as follows: “ Sec. 4. When the line between two towns or wards divides a farm or lot, the same shall be taxed,, if occupied, in the town or ward where the occupant resides; except when such town line shall also be a county line, in which, case each part shall be assessed in the town in which the same shall be situated, in the same manner as unoccupied lands are now assessed.” This section was repealed by chapter 355 of the Laws of 1872, and from that time there was no statute on this subject until 1886, when the section was re-enacted : “ Sec. 4. When the line between two towns, wards or counties divides a farm or lot,, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie.” Chap. 315, Laws 1886.

In 1884 and 1885 the plaintiff was a resident of the town of Ossian, and owned and occupied a farm, one-half of which was in that town and the other half in the town of Nunda.

In 1884, the assessors of the town of Ossian, not knowing of the repeal of § 4 by chapter 355 of the Laws of 1872, assessed the whole of the plaintiff’s farm in that town for town, county and state taxes.

Section 19 of title 1, chapter 16 of part 1 of the Revised Statutes provides: “Sec. 19. Every person owning or occupying land in the town in which he or she resides, and every male inhabitant above the age of twenty-one years residing in the town when the assessment is made, shall be assessed to work on the public highways of the town, and the lands of non-residents situated in such town shall be assessed for highway labor as hereinafter directed.”

Section 24 of the same chapter provides: “ Sec. 24. In making such estimate and assessment the commissioner shall proceed as follows: 1. The whole number of days work to be assessed in each year shall be ascertained, and shall be at least three times the number of taxable inhabitants in such town. 2. Every male inhabitant above the age of twenty-one years (with certain exceptions), shall be assessed at least one day. 3. The residue of such days work shall be apportioned upon the estate, real and personal, of every inhabitant of such town, as the same shall appear upon the last assessment roll of said town, and upon each tract or par•cel of land, of which the owners are non-residents, contained in the lists made as aforesaid.”

In 1885 the defendant was the sole commissioner of highways of Ossian, and he assessed the plaintiff for highway labor on his whole farm three and one-half days, being the proportion of that part situated in Hunda, and delivered the list to the overseer of the proper road district. This tax the plaintiff worked out at the demand of the overseer, but protested against its legality. It is agreed that the commissioner made the assessment believing that he was bound to follow the town assessment roll of the previous year, and also that he had jurisdiction to assess the plaintiff for highway labor, but it is asserted that the commissioner erred in apportioning any days labor on account of that part of the farm situated in Hunda. The defendant, having jurisdiction to assess the plaintiff and having apportioned the number of day’s labor to be rendered according to the valuation of his estate as it appeared on the last preceding assessment roll, as commanded by the 24th section of the statute, he is not liable to the plaintiff for the value of the labor rendered by him in satisfaction of the assessment. People v. Pierce, 31 Barb., 138; Trustees of the Village of Angelica v. Morse, 56 id., 380. The cause of the alleged erroneous assessment was the mistake of the assessors of the town, but the commissioner, having obeyed the command of a valid statute, is not liable to this plaintiff in damages for the error of the assessors.

The judgment should be affirmed, with costs.

All concur, Brown, J., in the result, except Bradley and Haight, JJ., not sitting.