author: DykmAN, J. :

text:
    RICHARD WANSER, Respondent, v. JOHN A. WYCKOFF, Appellant.

      Malicious prosecution— Probable cause.

    Defendant, the owner of a fishing boat, found, on going to look for it on several occasions, that it had been taken from its mooring. It was brought back, however, once with a net, another time with a net and some sea filth, left in it. The third time it was taken he caused plaintiff, who took the boat, to be arrested for grand larceny. In an action by plaintiff for malicious prosecution; held,, that there was an entire want of reasonable grounds for believing the party guilty of that crime, and that malice might be inferred from such want of probable cause.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions.
    This action was brought to recover damages for a malicious prosecution for an alleged theft.

      H. O. Place, for the appellant.

      Philip 8. Oroohe, for the respondent.
   DykmAN, J. :

The action for malicious prosecution bas its place among the many actions which were given by the common law for the protection of the person. It has its foundation in malice of the defendant, and a want of probable cause for the prosecution he has instituted.

It was found by experience that the law was sometimes used as an engine of oppression, by setting on foot malicious prosecution against persons for the gratification of private spite and enmity, under the guise of justice and public spirit, and this action was provided to redress that wrong.

The action, however, is not encouraged, but, on the contrary, is very much guarded ; for it is the policy of the law that men must be left reasonably free to institute criminal prosecutions whenever they have tolerable grounds of suspicion, and that they must not be held liable to respond in damages in all cases where the prosecution miscarries. Something more than an unfounded prosecution must be shown to support this kind of an action ; for it may happen, and very often does, that circumstances point directly and apparently unmistakably to the commission of a crime by a particular individual, and which, if unexplained, would convince “any proper minded person of his guilt, and which yet are susceptible of an explanation entirely consistent with his innocence.

Now if in such a case a prosecution should be instituted and should eventually miscarry, no one would say that any action for malicious prosecution should be maintained.

But if a person should cause another to be prosecuted criminally for an act which lacked the essential elements of a crime, or when there were no circumstances of suspicion that would justify a belief of guilt, then it. is but just that he should so act at his peril.

Accordingly, the courts and the elementary writers, when writing about this kind of an action, state the rule to be, that to maintain it, the plaintiff must show affirmatively that the defendant set on foot the prosecution; that it was without probable cause, and that it was accompanied by malice, and terminated favorably to the plaintiff.

The words “probable cause ” have come to have a fixed meaning when applied to this action; and they mean reasonable ground for , believing the party guilty; such reasons and such circumstances as would be satisfactory and convincing to right reason. If these grounds exist and are brought to the notice of the prosecutor, and he acts upon them, he will be justified. So that, upon the question of probable cause, it is not a sufficient justification that the accused is in fact guilty, but in addition to that the prosecutor must believe in his guilt and must have reasonable ground for such belief.

For the purpose of determining this case in the light of these principles, it should be examined from the defendant’s stand-point at the time he caused the plaintiff’s arrest, and viewed as he had the right to view the facts which had come to his knowledge at that time.

At that time the defendant claimed to be the owner of a fishing boat. He had purchased the boat in February, 1875 ; at the time he bought her she was lying at the lower end of Rockaway avenue, in winter quarters, and he let her remain in the same place, and she remained in the same position until some time in April following, when the defendant was down there and found some one had been using her; somebody had taken her off; she was gone several days; then she came back, and he hauled her ashore; she had a fishing net in her; he anchored her ashore, and the next day he went down and the boat was gone again ; then he came back, and he found her again with a net in her and a large quantity of sea filth; then he fastened her to an old steamer, and went down the next morning to clean her outj and found the chain broken and the boat gone. Then, he says, he secured information from several persons and had the plaintiff arrested. He does not state what the information was that he secured from these various persons, but it probably was that the plaintiff had taken the boat and- was using her for fishing, which was the fact. The foregoing is a statement of the facts as the defendant gave them in his testimony, given in.his own behalf, on the trial of this action, and it must be admitted that they fail entirely to justify the defendant in arresting the plaintiff or charging him with any crime. The boat was regularly taken and as regularly brought back. This took from the case one of the essential elements of a crime, and rendered it at most but a trespass. “When it came it contained a net which was left in it.” This showed that the boat had been put to its legitimate use, and that there was nothing clandestine about it. The defendant knew the net was not his, and ought to have known that its owner had been'using it in connection with the boat.

Such would not have been the conduct of a thief, and there was not one single fact or circumstance to justify the defendant in the belief that his boat had been stolen at all.

If we turn from this to the testimony on the part of the plaintiff in this action, we find that there was an entire absence of probable cause. The plaintiff had hired the boat from a person who claimed to be the owner, and had been using it steadily in his business of a fisherman, openly and of course under a claim of right.

We think, therefore, that the plaintiff established an entire want of probable cause, and that the defendant’s motion for a nonsuit was properly denied. That motion was made on the ground that the plaintiff had failed to show either malice or want of probable cause. At this time a want of probable cause had been shown, and from it the malice of the defendant might be implied (Murray v. Long, 1 Wend., 140), because the evidence which established the want of probable cause was such as to justify the inference of malice. Men do not cause the prosecution and arrest of innocent persons in the interest of the public, and as the defendant had no reason to believe that the plaintiff had stolen his boat at the time he caused his arrest, the fair inference would be that his motives were improper and malicious. This means actual malice or malice in fact.

The motion for a nonsuit was, therefore, properly denied and the cause was properly sent to the jury.

There was no exception to the charge of the judge, and we think none could have been fairly taken. It was very favorable to the defendant, and the verdict of the jury is small. We have examined the exceptions taken by the defendant during the trial, and do not think any of them are material.

The judgment must be affirmed, with costs.

Present — BabNAbd, P. J., Pbatt and DvxMAN, JJ.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author: TJyKmaN, J.:

license: Public Domain

text:
    LOFTIS WOOD, Appellant, v. FREDERICK HOEFT, CHARLES F. TONJES and C. GERHARDT MOLLER, Respondents.

      Whanfage — public streets — rights of owners of lots fronting on.

    Plaintiff was the owner oí a lot in tlie city of Brooklyn, fronting on the west on the East river and on the north hy South Sixth street, of the southerly half of which street he was seized hy virtue of the conveyance to him. The city of . Brooklyn, at its own expense, constructed a pier in South Sixth street, extending out into the river beyond the hulk-head on plaintiff’s lot. This action was brought by him to recover wharfage for vessels made fast to the southerly side of said pier. Reid,, that he was not entitled to recover; that his ownership of the southerly half of the street was subject to the right of the public therein, and that wharfage for vessels made fast to the pier must be paid to the city of Brooklyn. .
    Appeal from, a judgment in favor of tbe plaintiff entered upon the trial of this action by the court without a jury.
    In 1835, James B. Taylor and others, being the owners of certain lands in the village of Williamsburg, were authorized by chapter 128 of 1835 to construct bulk-heads and wharves on the same extending into the East river to a line designated in said act, and to receive wharfage .from persons using the same. The owners of the land constructed the bulk-head and filed a map showing the same, together with the streets proposed to be laid out and the lots fronting thereon. Subsequently lot D, on the annexed map, was purchased by the plaintiff, he being the owner by virtue of the conveyances to him of the southerly half of South Sixth street. In 1850, South Sixth street was opened from First street to Biver street, and in 1859 a pier was constructed thereon as shown in the annexed map.
    This action was brought by the plaintiff to recover wharfage from an elevator, which had been fastened during the two years prior to the commencement of this action, to the southerly side of the said pier.

      Exterior pier line as established by Harbor Commissioners under act of 1857.
    EAST RIYER.
    Permanent water line of village. See act of April 22,1835.

      Theo. F. Jackson, for tbe appellant.

      John JB. Bergen, for tbe respondents.
   TJyKmaN, J.:

The facts of this case are substantially undisputed, and are fully found and set out in the decision of the judge before whom it was tried. This action is brought to recover wharfage for the use of a pier by a grain elevator.

The pier does not belong to the plaintiff, and is not on his land. It is wholly north of his northerly line, and was built by the city of Brooklyn. It is true that the conveyance to the plaintiff covers the southerly half of South Sixth street, and it is by virtue of this right that the plaintiff claims to be the owner of the pier, and entitled to wharfage for this elevator, which was made fast to the southerly side of this pier. It must be borne in mind that this pier is a continuation of South Sixth street, and, so far as the plaintiff is concerned, a part of that public street. The plaintiff’s rights, as absolute owner, cease at the southerly line of South Sixth street. His interest in the southerly half of South Sixth street is subject to the rights and privileges of the public in that street. If, therefore, the city of Brooklyn has a pier on the street, at which vessels are made fast, the wharfage must be paid to the city.

It is certainly necessary that the party entitled to wharfage for the use of a dock must be the owner, and we think that the plaintiff, not being the owner of the pier, cannot recover in this action for wharfage. For the same reason, the plaintiff cannot recover damages for the use of the pier. ■ For these reasons we think the judgment of the court below was right, and should be affirmed, with costs.

BabNAkd, P. J., and Peatt, J., concurred.

Judgment affirmed, with costs.


author: DyKMAN, J.:

text:
    CATHARINE KERRIGAN, as Administratrix of, etc., of THOMAS KERRIGAN, Deceased, v. WILLIAM FORCE, as Executor of, etc., of MARY FORCE, Deoeased, and others.

      Judicial sales in county of Kings — -chap. 489 of 1876 — validity of — Oonsiitution, 'art. 3, § 16.
    Chapter 439 of 1876, providing that all judicial sales made in the county of Kings, except in actions of partition, and where the parties agree upon a referee, shall he made hy the sheriff of the said county, and prescribing the fees to be received by him upon sales on foreclosure, is a public and not a local act within the meaning of section 16 of article 3 of the Constitution.
    Even if such act were local it would not be obnoxious to the aforesaid provision of the Constitution, as it embraces but one subject which is expressed in the title, viz.: “An act relating to the expenses of judicial sales in the county of Kings.”

      Gaskin v. Meek (42 N. Y., 188) distinguished.
    Appeal from an order made at the Special Term, denying a motion to compel a purchaser to complete his purchase of eeftain real estate, sold under a decree of foreclosure entered in this action. The motion was resisted upon the ground that the sale having been made by a referee appointed by the court, without any agreement among the parties, was unauthorized and void, because forbidden by chapter 439 of 1876, which requires all judicial sales made in the county of 'Kings to be made by the sheriff.

      D. P. Barna/rd, for the plaintiff, appellant.
    The act is a local act. (People v. McCann, 16 N. Y., 160; Williams v. The People, 24 id., 405; People v. Hills, 35 id., 449; People v. Board of Supervisors of Chautauqua County, 43 id., 10.) It embraces two subjects, 'to wit: 1. That all sales shall be by the sheriff. 2. What the sheriff’s fees on foreclosure shall be. This bill is therefore unconstitutional. 1. Because it embraces more than one subject. 2. Because it is not expressed in the title that the sheriff shall make such sales. (Constitution, art. 3, § 16; Connor v. The Mayor of New Work, 5 N. Y.,- 285 ; People v. Supervisors of Chautauqua, 43 id., 10; Town of Fishkill v. Fishkill Company, 22 Barb., 634; Gaskin v. Meek, 42 N. Y., 186.) The second section of the act is unconstitutional, because, being a local bill it increases the fees of the sheriff, a public officer, during the term for which he was elected. (See § 18 of art. 3, as adopted at the November election, 1874; Laws of 1874, pp. 927, 928.) By section 77 of chapter 280, the Laws of 1847 (§ 3, R. S. [5th ed.], p. 291), it is provided that the sheriff shall receive his disbursements for printers’ fees, and also the same fees as upon sales by virtue of an execution, but such fees shall in no case exceed the sum of ten dollars. The practice and proceedings of the courts of record of this State are, by article 6, section 24, to be uniform. ■ But the act in question destroys that uniformity, inasmuch as sales in the county of Kings are governed by a different form from sales in every other part of the State.

      B. F. Tracy, for N. H. Clement, the purchaser.
    An act which, either in its subject, operation, or immediate and necessary results affects the people of the State or their property generally, is a general and not a local act. (People v. Supervisors of Chautauqua, 43 N. Y., 21; Bwrnham v. Acton, 35 How. Pr. R., 48; In re De Ycm-cene, 31 id., 289; People v. Williams, 24 N. Y., 407; People v. McCann, 16 id., 58.) Even if the act is deemed to be local, it is nevertheless constitutional. The subject-matter of the act relates to the expenses of judicial sales, and that subject is expressed in its title. (People v. Lawrence, 41 N. Y., 139; Matter of Mayor, 50 id., 507.)
   DyKMAN, J.:

On the 2d day of June, 1876, the legislature of the State of New York passed an act entitled An act relating to the expenses of judicial sales in the county of Kings.” ■

The first section provides that all sales made in. the county of Kings under judgment of any court, except sales in actions of partition and where the sheriff of said county is a party, except where both parties to a suit agree upon a referee to be appointed by the court, shall be made by the sheriff of the county of Kings; the second section prescribes the fees he shall be entitled to receive in cases of sales on foreclosure, with the disbursements made by him for certain prescribed purposes.

A referee was appointed by the court, to make the sale under the judgment in this action without any agreement being made by any of the parties for that purpose, and the purchaser now refuses to consummate the sale, denies that the referee can give a title to the premises, and asks to be relieved from his purchase and asks to be released, and the question thus presented and to be determined, is whether the referee can give the purchaser a good title under his sale, or whether the sale should have been made by the sheriff. It is not claimed that this legislation is obscure, nor but that this case falls within that class of cases in which, by the terms of this law, the sheriff must sue, but the legislation itself is challenged as being obnoxious to section 16 of article 3 of the Constitution of the State of New York, which provides that “no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” It will be convenient to determine, in the first place, whether the law in question is a private or local act.

This constitutional provision was first introduced in the Constitution of 1846. Before that time the question whether a law was a public or private act was only important in determining whether the courts would take judicial notice of it, or whether it must be pleaded, it being a rule of the common law, that the courts would take judicial notice of all public acts, but that private acts must be specially pleaded. The distinction between public and private acts is not very well defined in the books, and the word local, as applied to statutes, is comparatively new. The framers of the Constitution have used the words local and private both.

They employed the word private as applicable to persons only, and the word local as applicable to territory only. (People v. Supervisors, etc., 43 N. Y., 18.) It was an old common-law maxim in England, that every statute that concerned the king and every statute .that related to all the subjects of the realm were public statutes.

It was also held in Holland’s Case (4 Coke R., 76), that acts which in their objects and operations are merely local or limited are nevertheless treated as public acts, because, although limited to a particular section or locality, yet they affect the public at large when acting within that section or locality, in reference to matters within tbe purview of the act. Again, in Bacon’s Abridgment (Statutes, F), tbe rule is laid dowu that “ acts concerning all persons generally are deemed public, as distinguished from private acts, though it be in regard to a special or particular thing, such as a statute concerning the Circuit Court, Oyer and Terminer, woods in forests.”

Since the adoption of the Constitution of 1846, this peculiar provision has been often before the courts of our State, but in the great majority of cases the question has simply been decided one way or the other, without giving much light on the general subject. Some of the cases, however, do help us materially in their examination, and a reference to them will not be unprofitable. In the case of The People v. Supervisors of Chautauqua County (43 N. Y., 16), Judge Folgbb, in writing the opinion, gives a very clear idea of a local law in the following language: “The word local, as applied to a bill, to an act, to a law, means such bill, act or law as touches but a portion of the territory of the State, a part of its people, a portion of the property of its citizens.”

Again, after an examination of many of the cases, he remarks in the same opinion : It must be held, then, from the authorities, also, that an act is local within the meaning of the Constitution which in its subjects relates but to a portion of the people of the State, or to their property, and may not, either in its subject, operation or immediate and necessary results affect the people of the State, or their property, in general.”

This being so, the converse of the proposition would make'the law a general one. The case of The People v. O'Brien (38 N. Y., 193), holds that local acts are confined to the persons and property both of a specific locality, while general laws embrace either the persons or the property of the people of the State. In the case of Bretz v. The Mayor (3 Abbott’s Practice [N. S.], 480), in the Superior Court of New York, Judge MoNell makes use of the following language: “ There are statutes which are local- in one sense, which are nevertheless public statutes, for it is not necessary to constitute a statute a public act that it should be equally applicable to all parts of the State, it is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute.”

In Pierce v. Kimball (9 Greenl. [m. p.], 54), an act which prohibited sales unless tbus surveyed and marked was held to be a public act, as it operated on all persons; so an act for the preservation of fish in a particular river was pronounced a public act, inasmuch as it was obligatory upon all persons. (Burnham v. Webster, 5 Mass., 266.) In the case of Williams v. The People (24 N. Y., 405), one section of the law under consideration provided for an increased punishment for larceny from the person, when committed in the city of New York, and Judge Deitio thought this section was not local within the meaning of the Constitution, because it prescribes the rule of conduct for all persons, whether residents of the' city or of any other part of the State, and its increased penalties are intended to protect residents of other localities equally with the residents of the city.”

From these authorities, the rule seems fairly deducible that an act is general, within the meaning of the Constitution, which, in its subjects, relates to all the people of the State, or to their property, though its operation be not equally applicable to all parts of the State, and that local acts are such as are confined to the persons and property, both of a specific locality. Now, within these rules, we conclude that the act in question is a public act. It operates upon all persons in the State, no matter where they may reside, and upon the property of all such persons located in the county of Kings. Now, although our conclusion upon this point would lead to an affirmance of the constitutionality of this law, and of the order appealed from, yet we think it best to record the result of our examination of the other point raised,, that this act embraces more than one subject.

The provision of the Constitution invoked was intended by the framers of that instrument to prevent improper combinations of measures in local bills, and the fraudulent insertion of provisions foreign to that indicated in the title, and to require that the title of each bill should indicate the subject of its provision, so that neither the legislature nor the public would be misled nor deceived. (People v. Briggs, 50 N. Y., 558.) Does this legislation fall within the evils which were thus intended to be prevented and avoided ? Does the title of this act indicate the subject of its provision ? It is not necessary that the title shall be the best pr most expressive that could have been adopted. The degree of particularity with which a title of an act shall express the subject of the act rests in the discretion and wisdom of the legislature; and in examining and criticising the action of that body the courts must not require too much, and must not lose sight of the fact that the legislature is a co-ordinate branch of the government of the State, and that to it has been committed the legislative department of the government, and that with the exercise of its powers and functions the courts have no power to interfere. Neither should the courts be too astute to find out extraneous matter; on the contrary, every intendment is in favor of the validity of legislative enactments. Is the subject of this act fairly expressed in its title ? Does the act relate to any subject but that of expenses of judicial sales in the county of Kings? It does not profess to regulate them, nor prescribe them, nor control them, it only professes to relate to them. If it does this, and does nothing more, then it is not obnoxious to the provisions of the Constitution, and we cannot interfere. With the wisdom or folly of the legislature we have nothing to do. The legislature is as supreme in its sphere as the courts are in theirs; and if the law relates to no subject but that of expenses of judicial sales, then it is beyond our reach, and if relief is needed, it must be sought elsewhere. It was not necessary that the way or manner in which this law related to the expenses of judicial sales in the county of Kings should be expressed in the title. It does provide that certain judicial sales shall be made by the sheriff, and that for those he shall receive certain fees. If any provisions were made in relation to the expenses of judicial sales, they must certainly have been made with reference to some person or officer who was to receive them, whether the person or officer was named or not. In this act it seems to have been the intention of the legislature to prescribe the fees which the sheriff of Kings county should receive in cases of sales on foreclosure. It gives him no new power, but provides that certain cases shall go to him, and in those cases he shall receive certain fees. The legislature chose to make this act relate to the fees of the sheriff in that way, and we do not think it relates to any subject but the sheriff’s fees in judicial sales.

In the case of Brewster v. City of Syracuse, an act entitled “An act for the relief of James Ley & Son,” which authorized the common council of the city of Syracuse to levy a tax and pay the claimants $600 beyond the contract-price for building a sewer, was held valid by the Court of Appeals. (19 N. Y., 116.)

The case of Gaskin v. Meek (42 N. Y., 188), was referred to on the argument, but it was so different from this case that it can hardly be said to have any bearing on it at all. There the title of the act was “An act in relation to the fees of the sheriff of the county of New York, and to the fees of references in particular cases.” The act gave the sheriff the exclusive power of sale, except in partition cases, and provided that certain commitments by police justices should be directed to. the sheriff. That was a plain violation of the Constitution.

It is next claimed that the second section of this act is unconstitutional, for the reason that the law is a local one, and increases the fees of the sheriff during the term for which he was elected. If we are right in our conclusion that this is not a local but a general law, this objection is not well taken.

As to the objection that the act in question destroys the uniformity of the practice and proceedings in the courts of record of the State, we do not think the objection is well taken.

Order appealed from must be affirmed, with costs and disbursements.

Present — BarNArd, P. J., Pratt and Dyemau, JJ.

Order denying motion to compel purchaser to take referee’s deed affirmed, with costs and disbursements.


text:
    WILLIAM J. DICKSON, Plaintiff, v. SAMUEL FRAZER, MARINDA WOOD and others, Defendants.

      Judicial sale — bids at — duty of sheriff as to 'proceeds of sale — Estoppel.
    Upon a sale had under the foreclosure of a mortgage, the premises were hid in hy the attorney for the plaintiff, for an amount sufficient to pay the first mortgage, the fees of the sheriff on the sale, and a second mortgage owned hy the defendant Wood, The sheriff received the amount of his fees, hut not the amount of the Wood mortgage, she having agreed that said amount should lie secured upon, the premises by the purchaser. No security was ever given by him thereon, but he paid the interest to the defendant Wood for many years, until he finally sold the premises to a bona, fide purchaser, without notice. In an action brought by the defendant Wood, to charge the sheriff with so much of the bid as he had neglected to collect, held, that though it was the duty of the sheriff to have collected the whole bid, yet as he had neglected to do so at the instigation of the defendant Wood, the latter could not now insist that he erred in so doing.
    Appeal from an order made at the Special Term, denying a motion to compel the sheriff of Orange county to pay into court a certain alleged surplus arising on a sale had in this action.

      John Miller, for the appellant, Marinda Wood.

      E. A. Brewster, for Benjamin Hanmore, late sheriff of Orange county, respondent.
   DyKMAN, J.:

This action was commenced to foreclose a first mortgage. The defendant Marinda Wood was the bolder of a second mortgage. She appeared in the action by an attorney. The case proceeded to judgment, and the sheriff of Orange county sold the premises in pursuance of the judgment. The plaintiff’s attorney became the purchaser of the premises at the sale, for an amount sufficient to pay the mortgage of Wood above the plaintiff’s claim and the sheriff’s fees. The sheriff’s fees and printer’s bill were paid, and that was all the money the sheriff received.

The sheriff did not require the purchaser to pay the surplus money, for the reason that it was agreed between the purchaser and the attorney for the defendant Marinda Wood that her money should be left on the property and the payment thereof assumed by the purchaser. How this was to be accomplished was left to the purchaser, who was a lawyer and the lawyer of Mrs. Miller. A deed was drawn by the plaintiff’s attorney in pursuance of the sale and executed by the sheriff. After the deed was delivered the purchaser paid the interest to Mrs. Wood on the amount that was due to her for many years and she received the same, at first through her lawyer and afterwards directly from the purchaser; now, however, the purchaser has ceased to pay the interest and has sold and conveyed the premises to a ~bona fide purchaser. It now turns out that no mortgage was executed to Mrs. Wood for the amount of her mortgage, and that no security was taken at all.

Now, why should the sheriff pay this money? He has not had it, and he was prevented from getting it by the attorney of Mrs. Wood, who made other arrangements with the purchaser for her. He arranged with the purchaser that her money should be left on the premises, and that the purchaser should assume the payment of it. The application seems to proceed upon the ground that the sheriff had remitted the payment of that portion of the purchase money which was coming to Mrs. Wood, and that as he had no power to remit the payment of any portion of the money bid at the sale, he was guilty of misconduct and had prevented the defendant from getting her money.

We subscribe fully to the proposition that the sheriff had no power to remit the payment of any portion of the purchase, money. It was his duty to receive and account for the money bid at the sale. But we think that both Mrs. Wood and her attorney have waived the performance of this duty. In fact the attorney actually prevented it by active interference. It was the official duty of the sheriff to demand and receive from the purchaser the surplus money above the plaintiff’s claim, and deposit it with the county treasurer of Orange county, to the end that it might be obtained by Mrs. Wood. '

But her attorney interfered, released the purchaser from immediate- payment of the surplus, and made an agreement with him that he might assume the payment of the surplus personally, and thus become the debtor of the defendant. After this was done Mrs. Wood herself ratified the arrangement and accepted the purchaser as her debtor, and received from him the payment of interest on the amount for many years.

We think this transaction and this conduct on the part of Mrs. Wood and her attorney relieved the sheriff from all liability in the matter.

Order of Special Term affirmed, with costs and disbursements.

Pkatt, J\, concurred. BARNARD, P. J., not sitting.

Order affirmed, with costs.


author: DyehaN, J.

text:
    NATHANIEL MILLER and others, Respondents, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Mre earned by negligence of rail/road company — Evidence—as to ownership and location of lots burned— who may maintain action of trespass— Witness — may state who is in possession of real estate■ — after stating the facts, may gime conabu-sions as to injury done property — Appraisers—estimates made by.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee. This action was brought to recover damages to wood-land of the plaintiffs, caused by a fire started through the defendant’s alleged negligence. The wood-lands of a number of other persons had also been burned by the same fire, and their claims for damages therefor had been assigned to the plaintiffs, and were sought to be recovered in this action.
    The court at General Term, after approving of the findings by which the referee held that the fire was occasioned through the negligence of the defendant, and that the plaintiffs were entitled to recover therefor, say further: “ It will be now necessary to examine the objections and exceptions taken during the progress of the trial, to see if any errors have crept into the proceedings.
    At the close of the ease the defendant’s counsel made a motion to strike out certain of the plaintiffs’ exhibits, which were deeds of conveyance introduced in evidence on the part of the plaintiffs, on the ground that there was no proof that the property described in them was the same property which had been injured by the fire. Hnder the objection, we must assume that these deeds of conveyance were admissible in evidence, and if it be admitted that the premises were not identified, that does not make the admission of the deeds in evidence error.

      The question was asked of certain witnesses: “Are you tbe owners of a certain portion of this tract wbicb was burned over.” This was objected to as incompetent, and the referee received it for the purpose of locating the land. We do not think this was error.
    It was objected that as to many of the parcels of land injured, there was no proof of title, because the premises in the deeds of conveyance introduced were not identified. This objection is not well taken, because it appeared that in all the cases the persons making the claim, and who had assigned to the plaintiffs, were in possession of the land. This was sufficient to enable the party to recover against the defendant in trespass. (Brown v. Bowen, 30 N. Y., 539 ; 1 Cowen and Hill’s Notes, 353.)
    The referee allowed the parties to testify that they were in possession of the premises upon which the damage was done by the fire, and this kind of testimony was objected to and its admission is now insisted upon as error. We do not think it was. We think it is competent for a witness to testify that he is himself, or that any other person is in possession of real estate. (JParsons v. Brown, 15 Barb., 593.)
    During the progress of the trial a number of the witnesses, principally persons who had assigned claims to the plaintiffs, were asked the following questions substantially, after they had testified as to the lot and the extent of the fire: Now what do you estimate that that wood was damaged on that lot ?
    This was objected to as incompetent.
    Now there was no objection to the kind of question, except that it might call for the opinion of the witness. It certainly was not incompetent testimony.
    It was not objected to because it called for the opinion of the witness, but even if it had been, it is not necessarily open to that objection. It calls for an estimate and an estimate must be made up from facts, and the witnesses in all cases, both before and after they answered the questions, gave the facts upon which their estimate was founded. We think the general rule to be, that where a witness states the facts, he may be permitted to give his conclusion in relation to the injury done to property, either real or personal. We do not think, therefore, that there was any error in admitting this kind of testimony.

      After the fire three gentlemen were selected by the persons who had sustained damages by it, to make an appraisement of the damages sustained. These appraisers were men of experience, and were thoroughly acquainted with wood-land and wood, and its value, They examined each particular parcel, and made an estimate of the damage to each, which was reduced to writing.- This statement showed the estimated damages in each case in detail.
    These three persons were called as witnesses and were examined in relation to their estimate, and the principles upon which the same was made. The plaintiffs’ counsel offered the paper in evidence in connection with the testimony of the witnesses, and the referee allowed the papers to go in with the understanding that the witness is to be considered as testifying in the case of every man whose name appears on that paper, in the same manner and to the same extent, as in regard to the three persons whom he has testified about. To this the defendant simply excepted, without stating any ground. This was simply another way of getting the testimony of these witnesses, and we think the testimony was competent. (Robertson v. Knapp, 35 N. Y., 91.)
    The judgment must be affirmed, with costs.”

      A. J. Yanderpoel and Robt. S. Green, for the appellant. J. Lawrence Smith, for the respondents.

       Decided at September term, 1876.

   Opinion by

DyehaN, J.

Present — BaeNAed, P. J., Peatt and DyemaN, JJ.

Judgment affirmed, with costs.


author: Babnaed, P. J.;

text:
    JOSHUA HARRISON and JAMES HARRISON, Appellants, v. HENRY R. GLOVER and others, Respondents.

      Gomtraet — interpretation of — Priee of goods in mar7cet — determined by offer — not alone by sale.

    Appeal fi’om a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought upon a contract under which the plaintiffs, who were manufacturers of blankets, had intrusted the same to the defendants for sale.

      The action arose under a clause of the contract which provided that: “ It is hereby agreed that the blankets shall not be sold for less than those made by Dodson & Schofield, of Philadelphia, at the proper time for selling them.” The plaintiffs claimed that the blankets had been sold for less than the price at which the Philadelphia firm sold. The case has been already before the General Term, where it was held that the market-price might be proved as well by evidence of what they could be bought for, as by actual sales. (Harrison v. Glover, 11 S. O. R. [4 Hun], 121.)
    The plaintiffs claimed that the defendants had sold the blankets at a less price than that at which they were authorized to sell them, and claimed to recover the difference, with interest.
    Upon the second trial it appeared that, in the fall of 1870, Claf-flin & Co. applied to one Wilson, the agent of the Philadelphia firm, to ascertain the price at which he would sell two or three hundred bales of blankets. Whereupon Wilson replied that he would sell them as low as any one; that Clafflin & Co. must not buy of the plaintiffs at thirty cents, as he would sell as low or less. Clafflin & Go. then applied to defendants, and told them that Wilson had offered the Philadelphia blankets at thirty cents; whereupon the defendants sold them at that price.
    The referee found that the Philadelphia blankets were not actually sold as low as thirty cents during the season, but that the offer to sell at that price was actually made.
    The court at General Term say: “We think this offer of the agent of Wilson to sell Dodson & Schofield blankets at thirty cents, or less, established the price as effectually as if the offer had been accepted and the blankets delivered under it. The market-price of the blankets was established by the announcement of the price the manufacturers would take for the article. The offer was real, and the defendants acted in good faith. If the offer was made merely as a device to fix a price for' plaintiffs’ goods, less than the price called for by the agent, it would establish nothing. The referee has not found that, and I do not see how he could under the evidence. The defendants were not benefited by the sale; they sold to entire strangers. Wilson does not really deny he made the offer ; Claffiin’s agent says he did. The referee finds the offer and does not find bad faith.

      I think the judgment should be affirmed, with costs.”

      Walter G. Anthony, for the appellants. Daniel T. Walden, for the respondents.
   Opinion by

Babnaed, P. J.;

Pbatt, J., concurred.

Present — BaeNaed, P. J., Pbatt and Dyxman, JJ.

Judgment affirmed, with costs.


author: Dyemaet, J.

text:
    WILLIAM A. GUEST, Appellant, v. THE CITY OF BROOKLYN and DANIEL D. WHITNEY, As Registrar of Arrears, etc., Respondents.

      Assessment — publication of notice in different editions of papers — Laches of owner of property assessed.

    Appeal from an order made at the Special Term sustaining a demurrer interposed by the defendant, and dismissing the plaintiff ’s complaint in an action to annul a sale for a city assessment.
    The court at General Term say: “ The general questions involved in this appeal were before this court at the General Term in May of this year, and were then examined, and we adhere to the opinion then delivered, and reported in the eighth volume of Hun’s Reports, at page 97.
    The allegation in the complaint, that certain notices were not properly published because they were published only in the earlier edition of the newspaper, does not make out a case of defective publication.
    If none but the earlier editions of the paper had been published, then, of course, it would not be claimed that there was any defect in the publication ; and the fact that there were, or may have been, later daily editions of the newspapers cannot make any difference. If the assessments complained of should ever ripen into a title, the conveyance would only be evidence of the regularity of the proceedings had for the sale, and not of the assessment and other proceedings had before the right to sue attaches. (Marsh v. City of Brooklyn, 59 N. Y., 280.) This being so, it will be necessary for a claimant in proceedings to enforce this lien, or recover possession of the premises under any conveyance given in pursuance of or under it, to introduce extrinsic evidence to show the regularity of the proceedings. Such evidence would of itself disclose the defects and irregularities complained of, and defeat a recovery.
    Thus the plaintiff has the testimony always at hand for his own protection, and in such cases courts of equity will not interpose. Besides, we think the plaintiff comes with a very poor grace into a court of equity at this time, to ask to have his land relieved from all burdens imposed for the Third street improvement.
    The proceedings were commenced in 1861, and have been going on in different stages almost all the time since. It was a proceeding to open and widen the street, and grade, pave, ñag and ornament it, and also to insert sewers and water pipes beneath its surface, and by all these extensive improvements to bring it into public use and importance, and, as a necessary result, to enhance the value of the property lying on the street very materially. The plaintiff stood by all these years and saw this improvement going on, and was bound to know that some proceedings would be taken, under the provision of the city charter, to collect the money to pay for these improvements.
    Different notices were published on the subject, designed to call public attention to the proceedings, and to invite objections, if any there were. Still the plaintiff remained silent, even though, as he states in his complaint, he knew the proceedings were wrong. Thus, so far as he could do so by his silence, he lulled the city into a sense .of security, gave them no warning of approaching danger, took all the benefit he could from the progressing improvement, and when it was all done, comes forward with his bill in equity and sets up all the irregularities in the proceedings, and asks to have his land relieved from paying any part of the expense of the improvement. Had the plaintiff spoken in time, and raised objections in the proper quarter at the proper time, most of the irregularities complained of, if not all of them, could have been avoided, or the work could have been stopped. We think he should have done so, and that there is no excuse for his laches in that respect It is a rule of equity that if a person remains silent when equity and fair dealing require him to speak, equity will require him to remain silent when he wishes to speak.
    The judgment must be affirmed, with costs.”

      John J. Townsend, for the appellant. William G. De Witt, for the respondents.
   Opinion by

Dyemaet, J.

Present — Pbatt and DyemaN, JJ. BaeNAed, P. J., not sitting.

Judgment affrmed, with costs.


author: Babnaed, P. J.

text:
    ELIZA A. HASBROUCK, Appellant, v. DAVID J. BLAUVELT and CHARLES HASBROUCK, Executors of, etc., of MOSES C. HASBROUCK, Respondents.

      Oause of action — framd of executors — inducing plaintiff to accept worthless seawities as cash — liability of estate.

    Appeal from an order made at the Circuit directing that the complaint herein be dismissed.
    Tlie court at General Term say : “We think the complaint sufficiently states a cause of action. It avers that the plaintiff had a claim against the estate of Moses C. Hasbrouck. That this claim was admitted by both defendants, and was agreed to be paid by them in cash.
    That Blauvelt, one of the executors, fraudulently induced the plaintiff to accept worthless securities as cash. That the securities were not delivered to plaintiff, but still remain in the possession of said Blauvelt. The plaintiff by this action seeks to set aside the agreement to receive the securities as cash, and to be permitted to recover judgment against the estate for the amount of her claim.
    It does not distinctly appear to whom the securities belonged, whether to the estate, or to Blauvelt, or to strangers. In the absence of evidence creating an estoppel against plaintiff it would make no difference.
    The estate cannot be permitted to be benefited through the fraud of one of the executors. If the estate owned the worthless securities and fraudulently induced plaintiff to accept them, of course it was no payment.”

      Wilson <& Smith, for the appellant. O. P. Hoffman, for the respondents.
   Opinion by

Babnaed, P. J.

Present — Baenakd, P. J., and Peatt, J. Dyeman, J., not sitting.

Order dismissing complaint reversed and new trial granted.


author: Peatt, J.

text:
    ELIZABETH ALLEN as Administratrix, etc., of PHILIP EIGHMIE, Deceased, Respondent, v. JEREMIAH EIGHMIE, Appellant.

      Appointment of administratrix — relates bach to death of intestate — ejfeet of on agreements entered, into by administratrix before Tier appointment as such.

    Appeal from an order of the Special Term striking out a portion of the defendant’s answer as irrelevant.
    On the 8th of December, 1815, plaintiff was appointed admin-istratrix of Philip Eighmie, who died intestate, April 12, 1810.
    This action was brought to recover certain property of the intestate taken and retained by the defendant. The latter set up in his answer that, on or about the 16th day of April, 1810, defendant being next of kin to the said Philip Eighmie, deceased, and plaintiff the widow of said deceased, and said deceased dying without issue, entered into an agreement, by the terms of which defendant was to collect the said notes and cheeks belonging to the estate of the said Philip Eighmie, deceased, and from the sums so collected pay all just claims, debts and demands against the said estate, and in favor of parties other than this defendant, and that the sums in his possession, and to recover which this action was brought, were collected thereunder.
    This defense was stricken out as irrelevant. Upon appeal, the court at General Term say :
    “ The appointment of plaintiff as administratrix of the estate of Philip Eighmie, relates back to the time of death of the intestate. ( Vroom v. Van Horne, 10 Paige, 549.)

      The agreement made by plaintiff before ber appointment must, therefore, be held binding, and can properly be pleaded in answer to the complaint.”

      William G. ATbro, for the appellant. PLaalcett <& Williams, for the respondent.
   Opinion by

Peatt, J.

Present — Peatt and Dykman, JJ. Baenaed, P. J., not sitting.

Order reversed, with costs and disbursements.


author: Pbatt, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALBERT DAY, Appellant, v. JOHN H. BERGEN, Referee, Respondent.

      Oosts — Special proceeding — Commitment of refwee for contempt for refusing to ca/rry out judgment of foredoswre — is not.

    Appeal from an order of the Special Term, affirming a taxation of costs by the clerk of Kings county.
    This proceeding was instituted to secure the commitment of the defendant for a contempt, in refusing to pay and discharge certain taxes and assessments upon real estate sold by him as a referee, as required by the judgment in the action of Easton v. Piclcersgill.

    The court at General Term set aside the warrant of commitment. (13 S. O. R. N. Y. [6 Hun], 267.)
    The relator objected to the taxation of the costs by the clerk, on the ground that this was a special proceeding, and that the costs should be taxed by the judge before whom the same was heard, or by the court by which it was decided.
    The court at General Term say : “ It seems to me clear that the motion, out of which this controversy has arisen, was a part of the machinery belonging to the action of Easton v. Piclcersgill, used to carry the decree into effectual execution and protect the rights of the parties therein.
    It was, therefore, not a special proceeding within the meaning of section 3 of the Code, and the clerk was the proper officer to tax the costs under the decision of the General Term. (See Code, §§ 178, 471; Dresser r. Van Pelt, 6 Duer,. 687; Seeley v. Black,, 35 How., 369; Pitt v. Davison, 37 N. Y., 235; Holstem v. Bice, 15 Abb., 307.)
    It follows that the order appealed from must be affirmed, with costs and disbursements.”

      Albert Day, appellant, in person.

      John H. Bergen, respondent, in person.
   Opinion by

Pbatt, J.

Present — BaeNAed. P. J., Peatt and Dyxman, JJ.

Order affirmed, with costs and disbursements.


author: BarNArd, P. J.;

text:
    WILLIAM REYNOLDS, Respondent, v. JOHN GILCHREST, Impleaded with JAMES H. TRUESDALL, Appellant.

      Supplementary proceedings—failure of defendant to appeal’—contempt—amount of fine— what proper.

    MotioN for a reargument on an appeal from an order of the county judge of Westchester county, adjudging John Gilchrest guilty of contempt for not obeying an order made in supplementary proceedings, and imposing a fine of the amount due on the judgment in the order and the costs and expenses of proceeding, and directing that he stand committed 'till the same should be paid.
    The court at General Term say: “ This motion is made under a misapprehension of the decision made by this court. The appeal was from an order imposing a fine for a contempt. This fine was the entire amount of the judgment. There was no proof authorizing the county judge to impose so large a fine. The proceedings were supplementary to an execution. The judgment debtor made an unexcused default. The order should have been that such moderate fine be imposed as would pay the prosecuting attorney for his costs and expenses, and that the debtor should appear before the county judge for examination. No loss was shown by reason of the default. If we could have found from the papers the fitting costs and expenses we would have modified the order accordingly, but in the absence of such proof we reversed the order so that new proceedings might be taken if the owner of the judgment saw fit to institute them.”

      Wm. F. Furdy, for the appellant. J. 8. Millard, for the respondent.
   Opinion by

BarNArd, P. J.;

Pratt, J., concurred.

Present — BarNArd, P. J., Pratt and DyeMAN, JJ.

Motion denied.


author: Davis, P. J.:

text:
    THE GERMAN AMERICAN BANK, Plaintiff, v. THE PITTSTON AND ELMIRA COAL COMPANY, Defendant. THE SAME v. THE MORRIS RUN COAL COMPANY and others, Defendants.

      Attachment — fees of sheriff on— Oode,% 243 — chap. 415 of 1871 — chap. 26 of 1872.
    Under section 243 of the Code, requiring the fees of the sheriff and the expenses incurred by him in preserving property held under an attachment to he settled by the officer issuing the same, an application for that purpose may he made before the justice issuing the attachment while holding a Special Term at chambers.
    Section 243 of the Code, entitling the sheriff .to poundage upon property seized by him under an attachment, in cases where the action is settled, to be estimated upon the amount at which such settlement is effected, is not repealed by chapter 415 of 1871, as amended by chapter 26 of 1872, prescribing the fees to be received by the sheriff for performing the services therein set forth.
    Appeal from order made by Mr. Justice Donohue at chambers, taxing sheriff’s fees under an attachment against the above named defendants.

      D. O. Brown, for the plaintiff, appellant.

      George Wadsworth, for the sheriff.
   Davis, P. J.:

The attachments in this case were issued by Mr. Justice Donohue. We think there was no lack of jurisdiction in him, sitting at Special Term at chambers, to entertain the motions to tax the fees and fix the allowance of the sheriff. So far as these things are required by statute to be done by “the officer who issues the attachments,” the requirements of the statute were substantially complied with. The principal question is, whether the sheriff of Erie county was entitled to poundage on the sum paid upon the settlement of the judgments.

The attachments in this case were delivered to the sheriff. He attached a quantity of coal in the city of Buffalo, and took the same into his possession and control. Judgments were subsequently recovered in the attachment suits against the defendants therein. After such recovery, a settlement of the judgments was made by' the general assignee of one of the defendants, by payment-in the first above entitled suit of $9,657.49, and in the second of $10,110.71, being the amount of principal and interest of the judgments respectively. The assignee, at the time, and as part of the settlements, agreed to pay the sheriff’s fees on the attachments. There was in fact, no collection of moneys by the sheriff on the attachments. Under the provisions of chapter 5, title 1 of part 2 of the Revised Statutes, the sheriff would not have been entitled to poundage; but by section 243 of the Code, as amended in 1865, it is provided, in substance, that the sheriff shall be entitled to poundage where a settlement shall be had; and the amount of his poundage in such cases is restricted to the sum at which such settlement is made. By chapter 415 of the Laws of 1871 (vol. 1, p. 821), as amended by the Laws of 1872 (chap. 26), the fees of sheriffs for services thereafter done and performed were prescribed and regulated for all the counties of the State, except New York, Kings and Westehester. Subdivision 4 of section 1 of the act of 1871 provides a compensation for serving an attachment for the payment of money, and fixes a poundage for collecting the money on such attachment. In this respect, the act takes the place of the provisions of the Revised Statutes. The second section of the act of 1871 declares that “ all provisions of former acts fixing compensation for above services, and inconsistent with the provisions hereof, are hereby repealed.” The question is, whether by this repealing clause the act of 1871 has repealed the provisions of section 243 of the Code, which allows poundage upon attachments where attachments have been levied, and settlements have been afterwards made, upon the sum paid on such settlements. It is altogether probable that the legislature did not have in contemplation the provisions of section 243 of the Code, and for that reason made no express reference to that section. The question, therefore, depends upon the force to be given to the repealing section. That section repeals the provisions of all former acts fixing compensation for the services mentioned in the act of 1871 and inconsistent with the provisions thereof. Nothing whatever is said in the act of 1871 about poundage or compensation to sheriffs in cases where there is a settlement of the attachment suit. The services of the sheriff in such a case are, however, covered by subdivisions 4 and 10 of the first section of the act. But, to be within the repealing clause, the compensation for such services must not only be provided for in the preceding provisions of the act, but its allowance must be inconsistent with the provisions of the act. There is nothing in the allowance, under the act of 1871, of poundage for collections on judgments, inconsistent with an allowance under section 243 of the Code, in cases where a settlement has been made of the suit without any actual collection by the sheriff by sale or execution. All provisions for the matter is omitted in the act of 1871, and it is an exigency not therein provided for, and not inconsistent with what is provided for.

We think it may very well be said that the intention of the legislature was not to prohibit the allowances for such cases granted by section 243 of the Code. To strengthen this conclusion, it may be suggested that the fact of holding otherwise would be to prevent poundage in cases of settlement in all counties except New York, Kings and Westchester, and to allow them, under the Code, in these three counties; a distinction which we believe was not contemplated or intended by the legislature. The consequence is, that the provision of section 243, allowing poundage where settlements in such cases have been made, is still in force. The allowance in this case was made in pursuance of that provision, and at the rate therein specified. We see no reason for interfering with it. The affidavits were, in some respects, conflicting as to the property levied upon by the sheriff, and as to the character of his levy under the attachments. The assignee of the defendants, however, is hardly at liberty to dispute the levy, as it appears in the papers that he replevied the coal from the sheriff by an action brought for that purpose; and the facts set forth in the affidavits, we think, justified the court below in the conclusion that the levy extended f > all the coal mentioned in the affidavit.

The orders should be affirmed, with ten dollars costs and disbursements.

Bead-y and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE UNION CONSOLIDATED MINING COMPANY OF TENNESSEE, Appellant, v. JULIUS E. RAHT, CHARLES RAHT and JOHN THOMAS, Respondents.

      Attachment — where complaint contains several causes of action — Oode, § 227.
    Under section 227 of the Oode, authorizing attachments to he issued in actions arising on contract for the recovery of money only, or in actions for the wrongful conversion of personal property, an attachment cannot issue in an action in which the complaint sets forth several causes of action, some of which belong to neither of the two classes therein described.
    Appeal from an order made at Special Term vacating an attachment, in an action in which the complaint contained several causes of action, only one of which justified the issuing of an attachment.

      Simon Stern, for the appellants.

      Will. Man, for the respondents.
   Davis, P. J.:

The court at Special Term vacated the attachment because several of the causes of action stated in the complaint are causes for which a warrant of attachment cannot issue under the Code. If the Special Term was right in this conclusion, it is unnecessary to examine any of tbe other questions raised on the appeal. The amended complaint contains several causes of action, the most material, and all but one of which, are for the alleged misconduct and fraud of the defendant Julius E. Raht, in the management of the affairs of the plaintiffs as their agent, and for the conspiracy of the other defendants with him in the several alleged wrongs. The other cause of action is for the conversion by the defendant Julius E. Raht of certain personal property of the plaintiffs.

The two hundred and twenty-seventh section of the Code authorizes the issuing of an attachment in actions arising on contract for the recovery of money only, and in actions for the wrongful conversion of- personal property. This process is given by the Code, in no other actions. (Knapp v. Meigs, 11 Abbott [N. S.], 405; Scott v. Simmons, 34 How., 66; Lawton v. Kiel, 51 Barb., 30; Atlantic Mutual Insurance Company v. McLoon, 48 Barb., 27.) It seems therefore quite clear that the plaintiffs were not entitled to an attachment for the cause of action stated in their original complaint. Eor the purpose of meeting this objection, they subsequently amended the complaint by inserting, before the hearing of the motion, the alleged cause of action for the conversion of personal property. Did the action thereby become one for the wrongful conversion of personal property, within the. meaning of section 227 of the Code? "We think not. It still remained an action for the recovery of a large sum of money for the alleged frauds and conspiracies of the several defendants, and the addition of the alleged cause of action for the conversion of the personal property, only changed it into an action for all of the alleged causes. The Code gives an attachment only where the action is distinctly of one of the classes described in the two hundred and twenty-seventh section; and not where these actions are united with several other and different classes. The phrase, an action for the wrongful conversion of personal property,” is a well understood descriptive one, meaning a suit the object of which is to redress the particular wrong embraced in the description. But when several other causes of action for different torts are joined, as they may be, with the one for wrongful conversion of personal property, the action ceases to be one within the descriptive phrase, and becomes an action for the several purposes and causes specified in the complaint; and to snob an action no attachment is given by the Code. This view is greatly strengthened by the subsequent sections of the Code. Section 231, which prescribes the form of the warrant of attach ment, directs that it shall require the sheriff “ to attach and safely keep all the property of said defendant within his county, or so much thereof, as maybe sufficient to satisfy the plaintiff’s demand, together with his costs and expenses, the amount of which must be stated in conformity with the complaint.” Section 232 requires the sheriff to keep the property seized by him, or the proceeds thereof, “ to answer any judgment which may be obtained in such action.” Section 237 directs that “incase judgment be entered for the plaintiff in such action, the sheriff shall satisfy the same out of the property attached by him if -it shall be sufficient for that purpose and provides that when the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property or the proceeds thereof.” And section 241 which relates to the discharge of the attachment on application of the defendant by giving sufficient sureties, requires an undertaking to the effect that “ the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint or if the property be less than the amount claimed, then double the amount of the appraised value of the property.

All these several provisions clearly indicate that the intention was to limit the right to an attachment, to the causes of action particularly specified in the two hundred and twenty-seventh section, and not to extend it to an action for a number of causes, of which the specific cause may be one. If an attachment is allowable where several causes of action are united, the defendant’s rights might be greatly prejudiced. He cannot regain possession of his property, by executing the undertaking provided by section 241, without making such undertaking cover all the causes of action in the complaint, and without subjecting his sureties to pay the amount of cmy judgment that may be recovered in the action, whether it be for the attachable cause of action or not; nor can the attachment be so framed as to require the levy to satisfy the particular attachable cause of action, for the Code requires that it shall direct the sheriff to attach sufficient to satisfy the plaintiff’s demand; and it also requires that the sheriff shall keep the property seized by him, to answer any judgment which may be obtained in such action. And so under section 230 the defendant has no protection in the security required to be given on obtaining the attachment, unless he recover judgment against the plaintiff in respect to all the several causes of action in the complaint. The system of the Code relating to attachments is pervaded throughout, with the idea that the attachment is only to issue where the action is of the character particularly described, and that the right to the attachment shall ultimately be determined by the result of the issue joined in such an action. There is no provision for the trial of a separate cause of action where several torts are united in the same complaint, for one of which an attachment might have been issued if sued for by a separate action. And hence the defendant’s property is not subjected to provisional seizure, unless the plaintiff brings his action exclusively for the cause, or several causes, to which the right of attachment is specifically given.

The courts have held in respect to orders of arrest, that the order should not be granted where causes of action in which such order can be made are united with those in which it cannot. (Lambert v. Snow, 17 How., 517; McGovern v. Payn, 32 Barb., 83.) Anri the reasoning in those cases is applicable to the one before us. But this case is itself, perhaps, the best illustration of the principle. Here an attachment has been granted for $1,200,000, which is the aggregate demand in several causes of action. One of these causes alleges conversion of personal property of the value of $75,000, and yet, if the attachment can be sustained, it should direct the sheriff to attach property to cover the plaintiff’s entire claim, and to hold the same to apply against any judgment that may be recovered in the action, and even if property equal to the whole amount demanded be attached, it does not permit the defendant to regain possession without executing an undertaking to pay either the judgment in the action, or the whole value of the attached property; and that, too, without any right whatever on the part of the defendant separately to try the cause of action for the conversion, and thereby dispose of the right to this provisional remedy, We think it is of no importance to the principle involved, that only a comparatively small sum has been in fact attached in' this ease.

We think the learned justice was right in discharging the attachment, and that the order should be affirmed, with ten dollars costs and the disbursements of the appeal.

Brady and DANIELS, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY B. SMITH v. THE COMMISSIONERS OF PUBLIC CHARITIES, Etc., Respondents.

      Disorderly persons — chap. 508 of 1860 — Oourt of Special Sessions — review of sentence upon certiora/ri — Wife — when competent witness against husband.

    Under section 4 of chapter 508 of 1860, providing that after the conviction of any person by a magistrate as a disorderly person, “any appeal from or amendment to said order shall be exclusively for the action of the Oourt of Special Sessions,” the Supreme Court is not precluded from reviewing the decision of the Court of Special Sessions upon a common-law certiorari.
    Where a complaint is made by the commissioners of charities and correction, on the ground that a person has abandoned and neglects to provide for his wife, such complaint need not be upon their own oath; it is sufficient if they make a complaint sustained by the oath and evidence of other persons.
    Under section 8 of said act, providing that where proceedings are instituted thereunder to have one declared a disorderly person, “ any member of the defendant’s family, .of otherwise legal qualifications, shall be a competent witness to be examined,” the wife of the defendant máj be examined on the part of the complainant.
    Weit of certiorari to the court of Special Sessions of the Peace of the city of New York, to review the conviction of the relator as a disorderly person.

      J. H. Whitelegge, for the relator.

      W. A. Boyd, for'the respondents.
   Davis, P. J.:

This is a certiorari to the Court of Special Sessions to bring up for review the order of said court, affirming the order of one of the police justices, adjudging the relator to he a disorderly person, and requiring him to pay to the commissioners of public charities the sum of two dollars per week for the support of his wife.

The question is made by the respondent that the determination, of the Court of Special Sessions is final and conclusive, and cannot be reviewed by a common-law certiorari, or in any other form. This point is made upon the language of the statute under which these proceedings were had; which is, that “ any appeal from or amendment to said order shall be exclusively for the action of the Court of Special Sessions aforesaid.” (§ 4, chap. 508 of the Laws of 1860, p. 1008.) This language is not broad enough to preclude this court from reviewing the decision of the Court of Special Sessions, and it is not to be extended for that purpose by construction. It does not declare that the decision of the Court of Special Sessions shall be final and conclusive, but provides that the appeal from, or amendment of the order of the police justice shall be exclusively for the action of that court; which merely, in legal effect, declares that an appeal from the primary order shall only be taken to the Court of Special Sessions. In the case of The People v. Sanders (10 S. C. [3 Hun], 16), it was held that the writ of certiorari was a proper proceeding to review the decision of the Court of Special Sessions in eases like this.

On the trial in the Court of Special Sessions, the proceedings before the police justice upon which his warrant was issued, and all the evidence taken before him, were submitted by consent of both parties, subject to such legal objections as had been taken before the police justice. The court affirmed the order, and we are now simply to review such jurisdictional questions as were raised, and to so far examine the evidence as to determine whether there was any competent proof of facts to justify the adjudication made; and whether, in making it, any rule of law affecting the rights 'of the parties has been violated. (People v. Smith, 45 N. Y., 776; People v. Sanders, 10 S. C. [3 Hun], supra.)

There are two affidavits on which the police justice issued his warrant, one purporting to be made by the relator’s wife, and the other by one Margaret Heald. Both of these affidavits state in very direct terms that the relator had threatened to abandon, and had abandoned, his wife, without adequate support, and left her in danger of becoming a burden upon the public, and had neglected to provide for bis family according to his means. We think these affidavits were sufficient to justify the issuing of the warrant. It is not necessary that the commissioners of charities and correction shall make the complaint on their own oath. It is sufficient that they make a complaint sustained by the oath and evidence of others, as was done in this case. On the hearing, the wife of the relator was called as a witness on the part of the respondents ; she was objected to, but the justice overruled the objection and she was examined. The principal question discussed here is as to her competency, as without her testimony it is apparent that no case justifying a conviction was made out. We think, in such a case, the wife is a competent witness in behalf of complainants. The third section of the statute above referred to (chap. 508 of the Laws of 1860, 1008), declares that “ all provisions of law in relation to disorderly persons in the city of New York shall apply to any person so offending; and any member of defendant’s family, of otherwise legal qualifications, shall be a competent witness to be examined. In case the defendant shall offer himself to be examined, he shall be examined like any other witness.”

It is contended that the words “ any member of the defendant’s family of otherwise legal qualifications shall be a competent witness to be examined,” excludes the wife, because of her coverture. But we think the intention of the legislature was to permit, by this language, the wife to become a witness on behalf of the complainants. Without that construction the provision is substantially insensible. All other members of the family would be competent, as a matter of course, if of suitable age and of sound mind, and under no legal disability ; and the legislature intended by this provision to put the wife on the same footing as a witness, provided she possessed all the legal qualifications other than those growing out of her relation to the family by marriage to the defendant. This construction is in accordance with the general spirit of the common law, which has always permitted the wife to be a competent witness against the husband, in cases of breaches of the public peace committed against herself. She did not appear to be under any legal disqualification, except that which arose from her cover-ture with the relator, and that the statute removes for the purposes of such an investigation.

The testimony did tend to establish a case against the relator, and that is sufficient in a proceeding like this, inasmuch as we do not sit for the purpose of considering the weight of evidence. (People v. Board of Police, 39 N. Y., 512; People v. Sanders, supra.) The writ should therefore be quashed, and the proceedings below affirmed, with costs.

Beady and Daniels, JJ., concurred.

Writ quashed and proceedings affirmed, with costs.


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    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants, v. CHARLES G. CORNELL, JAMES B. NICHOLSON and ELLEN M. HENNESSEY, Administratrix, etc., Respondents.

      Street openings — taxation of costs — how set aside and reviewed.

    Where a party desires to set aside the taxation of costs in a proceeding, on the ground that the same is fraudulent and excessive, it is not necessary to commence an action in equity to review and vacate the same. The proper practice is for the court, whenever sufficient facts are shown at any time before the costs are collected and paid over, and even afterward, to direct a retaxation or readjustment of the costs in such a proceeding, where the law has been plainly violated and the established rules of the court plainly disregarded.

      Pitman v. The Mayor (10 S. C. R. N. T. [8 Hun], 370) explained.
    Appeal from an order made at Special Term, denying an application of the plaintiffs for the continuance of a temporary injunction against the defendants, previouly granted them, until the final hearing and disposal of the action.
    The injunction restrained two of the defendants and the admin-istratrix of a third person, deceased (formerly associated with them as a co-commissioner of estimate and assessment in a certain proceeding for the widening and straightening of Broadway from Thirty-fourth to Fifty-ninth streets, etc.), from prosecuting in any manner, until the further order of the court, an action at law which said two defendants bad previously commenced against the plaintiffs for the recovery of $165,632.40, with interest, being the alleged costs, charges and expenses of the said two defendants and said deceased person, as such commissioners, in said proceeding upon an alleged judicial taxation of the same made by Judge Caedozo, during the pendency of said proceeding, on or or about December 27, 1870. The action thus enjoined had proceeded to judgment, in favor of the plaintiffs therein and against the corporation, upon a demurrer interposed by said plaintiffs to the answer of the latter, with permission to answer over by a given day j and before that day the corporate authorities commenced the present suit, with said injunction order, against said plaintiffs, to restrain the further prosecution against them of said action at law.
    This action by the corporate authorities against the two litigating commissioners and the personal representative of their deceased associate was an equitable proceeding, instituted to set aside and vacate, by an exercise of the extraordinary powers of this court, the said alleged judicial taxation by Judge Caedozo of the costs, charges and expenses of said commissioners, which is the foundation of their action at law, on the ground that the same was absolutely void in form and actually fraudulent in substance.

      A. J. Requier, for the appellants.

      Henry E. Dames, 8. Q. Ciarle and Thomas Allison, for the respondents.
   Davis, P. J.:

The motion for injunction seems to us to have been properly denied. The appellants seek to maintain their rights to the provisional remedy of injunction, upon the ground that an action to impeach and vacate the taxation of the costs in the proceedings set forth in the complaint is the sole remedy of the plaintiffs. It is true that a judicial taxation of costs in such a proceeding is in the nature of a judgment at law, and is final and conclusive between the parties until reversed, vacated or set aside in the form allowed by law. (Pitman v. Mayor, etc., 10 Sup. Ct. R., 370; Supervisors of Onondaga County v. Briggs, 2 Hill, 135.) But it does not follow that the only remedy is by bill in equity, to vacate such proceeding on the ground of fraud. That remedy, assuming it to exist, is a tedious, complicated and difficult one, and is by no means the most appropriate and expeditious mode of redressing the alleged wrong. When this court said in Pitman v. Mayor (ubi sup.) that the remedy of the defendant in that case for the Correction of the bill was by a direct proceeding for the readjustment of the amount allowed, it did not mean to indicate that the proper course was by an action to vacate the proceeedings in the nature of a bill of review, on the ground of fraud. The readjustment of the amount allowed by' a direct proceeding in the contemplation of the court, at the time that opinion was written, was nothing more nor less than a retaxation, by a direct application to the court upon motion for that purpose. The court undoubtedly has power, in a proper case and upon sufficient facts shown at any time before the costs are collected and paid over, and even afterwards, if equities sufficiently strong are shown, to direct a retaxation or readjustment of the costs in such a proceeding, where the law has been plainly violated and the established rules of the court plainly disregarded. The proper course for the plaintiffs to have pursued in this case, would have been, to have made application to the court for a readjustment, upon such facts as it might be in their power to show, because that remedy is a simple one, easy to be pursued, and in all respects better applicable to a case of this character than the action which has been commenced, and would undoubtedly be granted if facts which would sustain the action were established. The granting or refusing of an injunction is largely in the discretion of a court of equity, and it is a sufficient reason for refusing it that there exists, if the plaintiff has any right to the relief it seeks, a more simple and easy mode of obtaining it. It is upon this ground that we prefer to put the affirmance of th order of the court below, without passing upon the merits of any of the questions involved in the action.

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

Beady and Daitiels, JJ., concurred.

Order affirmed with ten dollars costs, besides disbursements.


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    JAMES W. NASH, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.
    Assessment— whuntmry payment — recovery of.

    On the 38th of May, 1878, the plaintiff commenced an action to vacate an assessment laid upon certain premises owned by him, and then a lien thereon, on the ground that notice of the passage of the resolution authorizing the work had not been published as required by law. On the thirtieth of May he paid the assessment and took a receipt therefor, although no warrant had been issued thereon nor had any steps been taken to collect the same. The assessment having been subsequently set aside, this action was brought to recover the amount so paid. Held, that the payment was not made under duress, but was voluntary, and that he was not entitled to recover. (Brady, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      E. 0. Andrews, for the respondent.

      D. J. Dean, for the appellants.
   Davis, P. J.:

On the 6th of March, 1873, certain premises of the plaintiff, in the city of New York, were assessed for the pavement of the street on which they were situated. On the twenty-eighth of May following, the plaintiff commenced proceedings in the Supreme Court to vacate such assessment. On the thirtieth of May, the plaintiff sent a person in his employ to the office of the collector of assessments with his check, drawn to the order of such collector, to pay the assessment. The check was delivered to the collector' of assessments, who thereupon gave a receipt of payment. Subsequently, and on the eighteenth of June, the assessment was, by an order of the Special Term, vacated and discharged, so far as it affected the plaintiff’s lands. The proceedings show that the vaeativr was made on proof of the non-publication in the New York Leader, of the resolution and report of the common council recommending the paving of the street. It was not shown that any warrant or process of any kind bad been issued for the collection of the assessment; or that any step had been taken on the part of the defendants to that end, beyond the confirming of the list of assessments upon all the property benefited. The assessment was paid without protest or objection, other than such as may be inferred from the commencement of the proceedings to vacate it. At the close of the case, the defendants’ counsel moved to dismiss the complaint, on the ground that the payment by the plaintiff was voluntary and without compulsion. The court denied the motion, and defendants duly excepted.

This case differs from the case of Peyser v. The Mayor, lately decided by this court (8 Hun, 413), only in the fact, that in that case the proceedings to vacate were commenced after the payment was made, and the payment was made under protest, but these facts, so far as they affect the material questions in the case, are unimportant. In that case we held the payment to be voluntary, and that the plaintiff could not recover.

We see nothing in the views presented by the learned counsel for the respondent in this case, to change the opinion of the court as pronounced in the case referred to. The learned judge before whom the action was tried recognized the law as established by the authorities, prior to the Bank of the Commonwealth v. The Mayor (43 N. Y., 188), but was of opinion that that case had overruled the previous decisions and required him to render judgment for the plaintiff. But the facts of that case were materially different from those here presented. In that case a tax had been imposed upon personal property, to wit, United States bonds owned by the bank, and the warrant for its collection had been issued to the receiver of taxes, and it is distinctly stated that the defendants, by their officers, collected the tax .* * * by menace and compulsion from the plaintiff.”

In this case, no warrant for the collection of the assessment had been issued, although the learned judge states, as one of his conclusions of law, that one might have been issued; and the only coercion shown is that which is inferred from the right to issue this warrant, and from the existence of the assessment as a lien upon the land assessed, and the interest imposed by statute for nonpayment of the assessment within certain limited periods. In Fleetwood v. The Mayor (2 Sandf., 478), which was a stronger case for the plaintiff than the present, the court examined the effect of all the facts above mentioned in a very able and elaborate opinion, and held that they did not constitute such duress as took the case out of the well settled principle that money voluntarily paid by a party who disputes the validity of the claim cannot be recovered back again. In the New York and Harlem Railroad Company v. Marsh (2 Kern., 308), the defendant was a collector, armed with a warrant and power to seize property within his jurisdiction to pay the tax, but on his demand at their office, which was out of such jurisdiction, the plaintiffs paid the tax. They were held in that case to have paid it voluntarily, and that a demand by the collector, although upon a warrant in his possession, outside of his jurisdiction, was no such coercion or duress as rendered the payment involuntary. In Forrest v. The Mayor (13 Abb., 352), it was held, on demurrer, in a case similar to the present, that the payment was voluntary, and could not be recovered. In the Commercial Bank v. City of Rochester (41 Barb., 342), upon demurrer to the complaint in an action to recover back money paid upon an illegal tax, it was said: The court must see, from the facts stated, that the payment was, in fact, compulsory, and compelled by duress of the goods of the party making payment.” The complaint in that case was amended, and the action came to trial. It appeared that the plaintiff on making the payment had protested, and the common council, by resolution, had promised that the payment should not be treated as voluntary ; but the court held that the payment was voluntary, because no warrant had been issued or levy made. (Commercial Bank v. City of Rochester, 42 Barb., 499.)

In Dewey v. Supervisors of Niagara (2 Hun, 394), the assessment was paid to an officer armed with process for its collection. It was held not to be voluntary, but the court recognized the true rule, and said: Money paid upon a tax or assessment made under color of law, and while the assessment remained or was deemed valid, cannot be recovered simply on the ground that such tax should happen to be subsequently held invalid and set aside, or the proceedings upon which it was based set aside.”

In Newman v. Supervisors of Livingston County (45 N. Y., 676), the tax was collected upon warrant by levy and sale. There was in the case no pretense of voluntary payment, and the tax having itself been held to be utterly illegal and void, it was held that the right to recover the same arose.

In Chapman v. City of Brooklyn (40 N. Y., 372), no question of voluntary payment arose, but the right to recover was put distinctly on the ground of the total failure of consideration, where the plaintiff had paid his money at a tax sale of premises sold under an alleged assessment, which was utterly void for want of jurisdiction.

In Flower v. Lance (59 N. Y., 603), the court recognizes in full vigor the general rule in its application between individuals, that where a party voluntarily pays an illegal claim, there being no duress of person or of goods, or “ fraud on the part of the claimant, the fact that he made the payment under protest does not preserve to him the right of subsequently contesting the validity of the claim.” And we are unable to find any case in which the question arises between a public authority and an individual, where a different rule has been established. The only recognized distinction between that class of cases and those between individuals is, that a payment made to an officer who is armed with legal process by which he can enforce payment by an immediate levy upon property will be regarded as compulsorily made, while a naked demand between individuals cannot be so treated.

In this case the payment was made with full knowledge of the facts, for the plaintiff knew of the existence of the assessment ; he knew that he had himself commenced proceedings to vacate it, which were then pending; and he knew the grounds on which he claimed that the assessment was invalid. And yet, without the exercise of any compulsion, he voluntarily chose to make the payment, and take his chance of subsequently recovering the money.

To permit this to be done is to subject the defendants to innumerable suits for moneys which their officers cannot refuse to receive when voluntarily tendered, and which have been used for the purposes of the assessment, and in payment for benefits actually received by the plaintiffs, although afterwards held not to have been regularly authorized. A party who wishes to litigate the validity of an assessment cannot thus make the city a depositary of its amount wbicb be knows must be used for a specific and special object, and then compel the city to raise and refund the amount by general taxation, if perchance he ultimately succeeds in his attack upon the assessment He must take his ground and keep his money in such a case until the defendant, by some proceeding which the law will adjudge to be duress, has forced him to pay the assessment.

We think the judgment must be reversed, and a new trial granted, with costs to abide the event.

Daniels, J., concurred; Beady, J., dissented.

Judgment reversed; new trial ordered; costs to abide event.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SHEA v. THE BOARD OF POLICE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Respondent.

      Gourt of Special Bastions of New TorJc— record of conviction by, under chop. 883 of 1870 — unconstitutionaUty of.

    The relator was tried before the board of the police department of the city of New York, upon the charge of having committed an assault and battery upon one Quinlan. Upon the trial the only evidence introduced was a certificate of conviction of said offense before a Court of Special Sessions held March 30, 1871, before two justices, in pursuance of section 49 of chapter 383 of 1870. Held, that as this section was unconstitutional (People v. Huber, 49 N. Y., 133), and as no other statute authorizes the holding of the court by two justices, the conviction was void and the certificate thereof furnished no legal evidence of the guilt of the relator.
    CERTIORARI to the board of police of the police department of the city of New York, to review the proceedings had before said board, by which the relator was adjudged disqualified by law to hold membership in the police force and guilty of conduct injurious to the public welfare, and therefore ordered to be removed from the said force.

      O. W. Brooke, for the relator.

      G. F. McLean, for the respondent.
   Davis, P. J.:

The relator was charged with being disqualified by law to continue to hold membership in the police force, and with conduct injurious to the public welfare. The specifications under this charge were:

First. That on the 30th of March, 1871, the relator had been tried and convicted before the Court of Special Sessions of the Peace, holden in the city and county of New York, for an assault and battery upon one William Quinlan, and upon such conviction sentenced to imprisonment in the city prison for ten days.

Second. That he committed the crime of assault and battery upon the person of a man of the name of Quinlan, and was after-wards arrested and taken to court and charged with the said misdemeanor, and held to bail therefor in the sum of $500.

The only evidence produced on the part of the complainant to support these charges was a certificate of conviction, from which it appeared that at a Court of Special Sessions, held at the'halls of justice on the 30th day of March, 1871, the relator was tried and convicted of assault and battery, and adjudged to be imprisoned in the city prison for the term of ten days. It appeal’s by the record that the court was held by Joseph Dowling and Edward J. Shand-ley, police justices, elected in the second and fifth police judicial districts of the city of New York, and duly designated to hold the Court of Special Sessions of the Peace in and for the city and county of New York, under and by virtue of section 49, chapter 383 of the Laws of 1870.”

The question presented on this certiorari is whether such conviction was lawful. In Huber v. People (49 N. Y., 132) it was held that the provision for the reorganization of the Court of Special Sessions of the city of New York, contained in chapter 383 of the Laws of 1870, above referred to, is unconstitutional and void, and a conviction of petit larceny bad under that provision was reversed. It is clear, therefore, that the court by which the relator was convicted had no jurisdiction to try him for the alleged offense by virtue of section 49 of chapter 383 of the Laws of 1870.

To uphold the conviction it is necessary to find some other statute which authorized the court to be held by the two justices mentioned. The recital that the court was-held by virtue of that act, would not of itself defeat the jurisdiction if there were another statute under which the court might be held.

Prior to 1865 the Court of Special Sessions in New York was held by any three police justices of that city, and could not be held by any less number. (Laws of 1858, chap. 282, § 8 ; In re Divine, 21 How., 80.) In 1865 the court was authorized to be held by two police justices elected in the second and sixth judicial districts of the city, with power in the governor in case of the death, removal from office or resignation of either of said justices, to designate one of the other police justices of the city to hold said court. (Laws of 1865, chap. 563; Huber v. People, ubi supra.)

The act of 1865 was repealed by chapter 30 of the Laws of 1870, and the former act was thereby specifically revived and re-enacted, and declared to be in full force and effect. It follows that the only law under which the Court of Special Sessions could be held at the time the relator was convicted was that of 1858, as found in chapter 282, section 8 of the Laws of 1858; because the forty-ninth section of chapter 383 of Laws of 1870 was unconstitutional and void; and because the act of 1870 had repealed that of 1865, and specifically restored the act of 1858. It required, therefore, three police justices to hold the court. There were but two who held the court at which the relator was convicted. The conviction was therefore without jurisdiction on the part of the court, and for that reason was void. A certificate of such conviction would not be legal evidence of the guilt of the party. It was the only evidence produced to sustain the charges, and it necessarily follows that the charge must be regarded as wholly unsustained by legal proof.

The relator presented a petition to the board, for reinstatement, which contains statements relative to the charge of assault and battery and the proceedings upon the trial. These statements, however, do not contain proof of his offense, because if taken to be true they show that he was guilty of no offense whatever in the transaction out of which the prosecution for assault and battery arose. There is nothing whatever in the petition to justify his conviction of the charges; and it is obvious that the respondents did not rely upon the petition as evidence against him that he had committed the offense of assault and battery.

If the certificate which was put in evidence had shown a valid conviction it would of course have sustained the charge; but showing a conviction wholly void for want of jurisdiction, it cannot be said to be legal evidence either of the charge or any of the specifications.

¥e think the conviction should be reversed and the proceedings remanded.

Beady and DaNiels, JJ., concurred.

Conviction and removal reversed and proceedings remanded.