author: Peckham, J.

text:
    The People, Resp’ts, v. The Milk Exchange (Limited), App’lt.

      (Court of Appeals,

      Filed April 19, 1892.)

    .Pleading—Corporation—Dissolution tor nonuser.
    The complaint in an action to dissolve the defendant corporation stated that it had been formed for the purpose of “buying and selling milk at wholesale and retail, the purchase of dairies of milk, when deemed advisable, and the sale of the same to milk dealers; ” that it had done none of these things, and was fraudulently and unlawfully incorporated for purposes other than those named in the said certificate and that it was formed in pursuance of a fraudulent, unlawful and corrupt combination and scheme on'the part of ninety dealers in milk to control the market price of such commodity; that by their bylaws if any stockholder failed to abide by the price fixed he forfeited his stock; that defendant had no capital and had declared no dividend, and that it existed solely as an unlawful combination and conspiracy to control the price of milk; that it had done so and had unlawfully employed agents for such purposes, etc. Held, that the complaint stated facts sufficient to constitute a cause of action for dissolution of defendant on the ground that it had never exercised its powers or franchises since it was incorporated and that such failure or non-user was wilful and without justification.
    Appeal from judgment of the supreme court, general term, fourth department, affirming interlocutory judgment overruling demurrer to the complaint.
    This was an action brought by the attorney general to dissolve the defendant corporation.
    The complaint after stating the due incorporation of defendant for the “ buying and selling of milk at wholesale and retail, "the purchase of dairies of" milk when deemed advisable, and the .sale of the same to milk dealers,” alleged on information and belief that defendant had up to the present time neglected to act as a corporation for the purpose set forth in its charter and set forth in its .statement in the original certificate filed or for any lawful purpose; that it had not bought or sold milk at wholesale or retail, nor had it purchased dairies and that it was fraudulently and unlawfully incorporated for purposes other than that named in its said certificate; that the persons signing the original certificate and the stockholders and directors never intended or designed that it should engage in the buying -or selling of milk in any manner or quantity or form whatever, and that it was not incorporated for that purpose; but such incorporation was had in pursuance of a fraudulent, unlawful and corrupt combination and scheme on the part of the dealers of milk in the city of New York to control the market price of milk in said city and other parts of the state of New York.
    That there were ninety stockholders who had enacted by-laws "by which the board of directors were authorized to fix the market price at which milk should be purchased by the individual stockholders, and if any stockholder failed to abide thereby the ■directors were given power to declare his stock forfeited. That ■the said,board of directors had so controlled the price. That the defendant had engaged in no business authorized by its in•corporation, had declared no dividend, and that its sole business had been to wrongfully and unlawfully control and fix the ■market price at which milk should be purchased; that the capital stock represented no actual capital, and that defendant existed solely as an unlawful combination and conspiracy by the .stockholders to control the market price of milk and to strangle and prevent general competition in the purchase and sale thereof .and enhance the price thereof to the consumer, and that it had -so fixed and controlled the price of milk as to increase the price thereof to the consumer and decrease the price paid to the pro■ducer, and had unlawfully employed agents to carry out its said purposes, etc.
    The second cause of action repeated the allegations of the first ■and named certain dates upon which defendant had assumed to .so fix the market price of milk; alleged that it had by so doing violated the laws of the state of New York and had become a public menace and, of great injury and hurt to the people of the .state; that leave had been granted to the attorney-general to bring the action under §§ 1798 and 1799 of the Code of Civil Procedure, and asked judgment that the defendant be dissolved, .its charter vacated, its corporate existence annulled, and that it be enjoined from, acting as a corporation, and that a receiver be .appointed.

      Alfred Ely, for app’lt; S. W. Rosendale, att'y-gen’I, for resp’ts.

       Affirming 40 St. Rep., 986.

   Peckham, J.

The defendant demurs to the entire complaint on the ground that it does not state facts sufficient to constitute a -cause of action. A separate demurrer is also interposed to both the first and the second counts on the ground that neither ¡states facts sufficient to constitute a cause of action.

I think the complaint states with sufficient fullness and certainty that the corporation has never exercised its powers or franchises since it was' incorporated, and that such failure or non-user was wilful and without justification. Upon this point the general allegations of conspiracy to do other and alleged illegal acts under cover of the corporation are sufficient to show that the failure to exercise its privileges, or to do the business, for which it was formally incorporated, was not such a failure by defendant as might be harmless, or overlooked by the state, but constituted within all decisions a proper ground of action by the attorney-general, under leave of the court, for the purpose of obtaining a decree dissolving the company. Although it is a private corporation, where a non-user of the character-alleged in this complaint is shown, it is to the public interest that the corporation should be dissolved. This would lead to the affirmance of the judgment overruling the demurrer to the whole complaint. There is enough stated in each of the separate causes of action to make it necessary to overrule the demurrer thereto on the same ground as is taken in disposing of the demurrer to the whole complaint.

The second cause of action re-states all that is contained in the first, and adds something more, and claims the whole to constitute a separate ground of forfeiture.

The second count shows the same non-user as the first, but. there are added certain other allegations as to unlawfully fixing the price of milk and unlawfully limiting the supply thereof, which would furnish additional reasons for the forfeiture under the non-user clause in the statute. These might be set up in a. separate count, although not probably necessary in order to permit of proof being given in regard thereto if set up in the first, count.

It is claimed, however, that these allegations of unlawfully fixing the price and limiting the supply of milk are of such a nature-as to warrant a forfeiture and dissolution in and of themselves. It might be said that if these acts were unlawful, as alleged, then the defendant had no right to perform them. But the allegation-as to illegality is in such a case a conclusion of law, and not admitted by the demurrer. Under the charter of defendant they might be claimed to be unauthorized, and hence proper to be-all eged as acts which showed the character of the non-user of the-actual franchises given by the charter, and that such non-usqr was wilful and wrong, and, therefore, it was good ground for-enforcing the forfeiture.

Whether an agreement in regard to the price or one.looking towards the limiting, to some extent, of the supply of an article, must necessarily be illegal under any and all circumstances, we-do not decide upon this demurrer. The proper determination of such a question will be the more easily arrived at after a trial, when the evidence is in and the facts and inferences therefrom duly found, and after opportunity for full discussion thereon has, been given to all sides.

It is one of great importance, involving the right to agree as to price or as to the limitation of the supply of an article under any circumstances, and we think it better to leave such question untouched by this decision.

As each count in the complaint states a good cause the judgment must be affirmed, with costs, with leave'to defendant to answer on payment of costs, etc.

All concur, except Maynard, J., not sitting.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    The People ex rel George Wren, App’lt, v. Adolph Goetting Police Justice, Resp’t.

      (Court of Appeals,

      Filed April 19, 1892.)

    • 1. Mandamus.
    A writ of mandamus should be refused to aid the admission of a claimant into an office already filled under color of law and when the title to it presents a disputable question.
    2. Same—Veteran.
    Where the clerk of a police court in the city of Brooklyn has been removed from office by the police justice and his position filled, and he claims that as an honorably discharged soldier of the late war he could not be removed.except for good cause shown after a hearing had, he is limited to his action in the nature of a quo warranta and is not entitled to a writ of mandamus.

    Appeal from judgment of the supreme court, general term, ■second department, affirming order denying motion for writ of mandamus.

      William J.- Gay nor, for app’lt; Almet F. Jenks, for resp’t.

       Affirming 29 St. Rep., 286.

   Gray, J.

The relator was appointed, in 1881, clerk of the police court of the third judicial district in the city of Brooklyn. In 1889 he was removed by the respondent, the police justice .assigned to that court, and one Degnan was appointed clerk in his stead. The relator then brought the present proceeding against the police justice to compel him, by writ of mandamus, to recognize the relator as the clerk of said court “and as the person •entitled to hold said office and to permit him and him only to perform the duties of such clerkship and have the benefits and -emoluments thereof.” The court below denied the application for the writ, on the merits. The relator had claimed that, as an honorably discharged soldier of the late war of the rebellion, he could not be removed, except .for good cause shown, after a hearing had, and held his position for and during good behavior; relying upon the provisions of § 29 of title 22 of chap. 583 of the Laws of 1888. Justice Cullen, before whom the matter came, considered that these provisions did not apply to the case of one ivhose position was that of a chief clerk of any official, and that the relator’s office amounted to that.

There is, however, this insuperable objection to the maintenance •of this proceeding by the appellant, that mandamus is not the proper remedy in such a case. The office claimed is filled by another person, holding under color of right, and the question of the title to the office turns upon the construction of statutory provisions. It would be highly inappropriate to determine such a questian in a mandamus proceeding. The appropriate remedy, and» an adequate one, is by' information in the nature of quo warranta,. in which proceeding the incumbent of the office can be heard in. his own behalf upon the disputed question. The rule must be regarded as well established by frequent decisions in the courts of' this state that the writ of mandamus should be refused to aid the admission of a claimant into an office already filled under color of law, and when the title to it presents a disputable question. People v. Stevens, 5 Hill, 616; People ex rel. Dolan v. Lane, 55 N.Y., 217; Matter of Gardner, 68 id., 467; Nichols v. McLean, 101 id., 527. High, in his work on Extraordinary Remedies, § 49, considers such a rule to be “ established by an overwhelming current-of authority.” In Matter of Gardner, supra, it was said by Miller, J., in the discussion of the question as to the proper remedy, in this state, for a party who claims title to an office where it was-filled by another, that “it was settled at a very early period in its-judicial history that where a person is already an officer by color of right, the court will- not grant a mandamus to admit another person who claims to have been duly elected, and that the proper' remedy is by an information in the nature of a quo warranta.”

In Nichols v. McLean, supra, Andrews, J., delivering the opinion of the court, when discussing the question of remedy by a. proceeding quo warranta, or, as it is since the Code, by a direct action in the nature of such, instituted by the attorney-genei’al,‘said: “The courts held that they would not, at the instance of a person out of possession of an office, try the title to the office by mandamus, or other proceeding, but would leave him to his remedy by information; and it has been said in several cases that the-title could only be tried in that proceeding.” The learned judge cited, in support of- these views, the cases of People v. Stevens, 5 Hill, 616; People v. Vail, 20 Wend., 12; People v. Ferris, 76 N. Y., 326, and People v. Lane, 55 id., 217.

In the present case, the office claimed is one created by the-charter of the city of Brooklyn, Laws of 1888, chap. 583, and is filled, as the act directs it to be done, by appointment of the-police justice. It is a statutory office, and the incumbent derives; his authority to perform its functions and his right to its emoluments from the provisions of the statute. A decision upon the right of this claimant necessarily involves the construction and effect which should be given to the provisions .of the Brooklyn charter and to the general enactment upon the subject of the preference to and the tenure of office in the cases of veterans of the late war. The general enactment was made earlier in 1888, chap.. 119, Laws of 1888, than the passage of the Brooklyn charter,, and contained this excepting clause, namely: “This provision shall not be construed to apply to the position of * * * chief clerk * * * or to any other person holding a confidential relation to the appointing officer.” The appellant’s contention is that the provisions of the Brooklyn charter, in the particular respect discussed, being those of a later enactment by the legislature of 1888, alone control, and were a re-enactment of a special law of 1887, which the general act had not repealed. His counsel argues, therefore, that the relator was the legal clerk, and that the justice’s removal was a void act He further contends, that if the general act is applicable to Brooklyn, the relator does not come within its proviso excepting chief clerks, etc., from the operation of the law. These are questions admitting of more or less serious argument, and to them might be added a question as to the applicability of the provision in the Brooklyn charter to the particular office; upon the assumption that the proviso in the general law does not control that provision of the charter. A possible ambiguity may be claimed to arise from the reference in the Brooklyn charter provision to “ persons holding positions,” when considered in connection with an office created and filled by the terms of the statute.

In People ex rel. Dolan v. Lane, supra, the relator was assistant clerk of the district court in the city of New York. The justice, claiming to possess the requisite power to do so, removed him and appointed another to the office. Subsequently, the relator applied for a mandamus compelling the defendant to make and deliver a certificate for the payment of his salary for a certain month. The special, term denied the application, but the general term reversed its order and directed the mandamus. On appeal to this court it was there considered that mandamus was not the proper remedy. Rapallo, J., who spoke for the court, said that the exclusion of the relator from the office and the installation of another person therein was done under color of law, and that the legality of these acts “ depends upon the construction of a statute framed in such ambiguous language as to render its interpretation difficult. * * * Under these circumstances, the title to the office should not be determined in a proceeding by mandamus * * * to which proceeding the person in possession and interested in maintaining his right thereto is not a party.” Again, he said: il Indeed, it is doubtful whether the title to an office ought ever to be tried collaterally on proceedings by mandamus instituted in behalf of a party out of possession. People v. Stevens, 5 Hill, 616, 627.”

In that case, the question was, in a respect, similar to the one here, inasmuch as it turned upon the power of the justice, under an act (Chap. 43.8, Laws of 1872) to appoint as he did, and its ■decision required a construction of the language of the law.

Here we are confronted with grave questions relating to the ■operation and effect of different statutes and the construction of the language of a law upon which judicial minds may fairly •differ, and upon the determination of which depends the light of .a party holding a statutory office de facto and under color of right, to remain in possession. My conviction is that the proceeding should not have been entertained, and that the court below should have left the claimant to his action in the nature of quo warranta, in which the incumbent of the office could be heard in defense of his rights.

For these reasons, the order appealed from should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    The People ex rel. Richard Fox, App’lt, v. Henry L. Hayden, Commissioner of Police, Resp't.

      (Court of Appeals,

      Filed April 19, 1892.)

    Municipal corporations—Boiler inspector.
    Boiler inspectors in the city of Brooklyn, having the “ same powers and. privileges as members of the police force," are entitled to a hearing bifore dismissal and a fair opportunity to show that there is no legal ground for it.
    Appeal from judgment of the supreme court, general term,, second department, confirming proceedings of commissioner of police of Brooklyn removing relator from office as an inspector of. boilers.

      William J. Gaynor, for app’lt; F. A. McClosTcey, for resp’t.

       Reversing 32 St. Rep., 1116.

   O’Brien, J.

The judgment of the general term, from which this appeal is brought, affirmed, upon a writ of certiorari, the determination of the commissioner of police and excise of the city of Brooklyn dismissing the relator from the place óf boiler inspector in that city. It appears from the relator’s affidavit and the defendant’s return to the writ that on or about April 10,1879, the relator was appointed such inspector. That he retained the place till February 29, 1890, when he was removed by the defendant Henry L, Hayden, commissioner of the department of police and excise, without cause and without a hearing. The defendant in his answer or return to the writ states that he assumed the duties of his office about the 1st of February, 1890, and that with a view of reducing the expenses of maintaining the department and in the exercise of the powers and duties imposed upon him, he determined that the services of the relator could be dispensed' with and that he be removed from the department. The question, therefore, is whether the relator could be discharged from the office or place which he held in virtue of his appointment without a hearing.

In order to get as clear a view as possible of the question, it is-necessary to refer to some statutory provisions concerning the office from which the relator was dismissed.

By chapter 883 of the Laws of 1867 the Metropolitan Police-Board was intrusted with the inspection of steam boilers in the city of Brooklyn and was authorized to appoint members of the “ Metropolitan Sanitary Company ” to make the inspection. Subsequently the duty of making such inspection was conferred upon the board of police of the city of Brooklyn, 'and it was-authorized to detail to such duty members of the police force competent therefor. Laws' of 1871, chap. 194, § 53. The amended charter of the city, passed in 1873, imposed upon the police board this same duty of inspection, and for the purpose of executing it power was given and the board was directed to appoint “ not to exceed four boiler inspectors, who shall be skilled machinists.” Laws 1873, chap. 863, tit. 11, § 52. The charter also contained a provision which had existed for many years before, to the effect that members of the police force could be removed only for cause after notice and a hearing, Laws 1873, chap. 863, tit 11, § 12; Laws 1870, chap. 136, § 13: Laws 1871, chap. 194, § 16, and the more recent act to revise and combine in a single act all existing and local laws affecting public interests in the city of Brooklyn has retained the provision. Laws 1888, chap. 583, tit 11, § 13. In the act last mentioned, § 52, provision is made for the inspection of boilers by persons who are practical engineers, and after providing for such inspection, under rules to be prescribed by the commissioner of police and excise, it is provided in | 54: “ Por the purpose of carrying out the provisions of the last two sections, the said commissioner shall appoint not to exceed six boiler inspectors, who shall be skilled machinists, and shall possess the same powers and privileges as members of the police force.”

Thus the statute authorized the appointment of six persons, possessing certain qualifications, to an office that had attached to it very important duties of a public nature, and in which the public were interested. The duration or term of the office was not fixed, nor were the powers and privileges enumerated specially, but for brevity the authors of the law referred to another provision of the statute prescribing the powers, duties and privileges of the members of the police force. They were to possesss the same powers and privileges as members of the police force. The precise inquiry is what is meant by the word privileges. The learned counsel for the defendant contends that the term was intended to express something less than a right resting in discretion, and which might be granted or withheld at the pleasure of some superior power.

The words “privileges” and “rights,” when used in statutes, are sometimes synonymous, and we think are clearly so in the statute in question. A statute providing, as this does, that certain persons shall hold office during good behavior, and shall not be removed therefrom except for cause, and after notice and a hearing, confers very substantial rights upon such persons, but such rights are very frequently and appropriately enough termed privileges also. The learned counsel ofor the defendant seems to concede in his argument that the provisions of § 42 of tit. li of the charter, providing for pensions to members of the police force on account of injury, long service or inability, ca'used by long service or age, for the benefit of themselves or their families, constitute a privilege which attaches to the office of boiler inspector also under the terms of the statute. If this is so it furnishes a very strong reason why the relator should be exempt from an arbitrary dismissal without cause and at the mere will of the appointing power. The right or privilege of receiving a pension from the government, based upon long service, carries with it the idea of permanency in the service for which the pension is ultimately granted.

Such a right or privilege, whatever it may be called, cannot well exist with the power to defeat it at any time before the expiration of the necessary period of service by a discharge of the incumbent without cause and without notice or an opportunity to be heard. One of the privileges which the members of the police force of the city of Brooklyn possess is the exemption from dismissal during good behavior. Another privilege guaranteed to them is a hearing before dismissal and a fair opportunity to show that there is no legal ground for it. This last mentioned privilege, at least, attaches to the office of boiler inspector under the statute. In order to reach this conclusion it is not necessary to show that a boiler inspector is a member of the police force. It is enongh that he has, under the law, the same privileges. It. is impossible for him to possess the same privileges, within the meaning of the statute, if he is liable to be dismissed at any time-without cause and without a hearing. It is suggested that the proper authority, in order to regulate or reduce expenses of the department, may reduce the force of inspectors. That may be so,, but if the want of funds or the necessity to reduce expenses is cause for dismissal, still the discharge must be made upon notice- and after a hearing. However that may he, it seems to us that, the language of the statute, the importance of the place and of the duties to be.performed, and its relation to the members of the-police force and the police department, all indicate that it was the intention of the legislature to put policemen and boiler inspectors, in the same position with respect to dismissal from the service.

It follows that the order appealed from and the determination of the commissioner should be reversed, with costs in all courts, to the relator.

All concur.


author: Maynard, J.

text:
    James Donohue, Resp’t, v. Hiram Whitney, App’lt.

      (Court of Appeals,

      Filed April 19, 1892.)

    1. Bound ables—Evidence—Maps.
    In an action involving the location of the boundary between the parties,, where their deeds gave a specified line but no data by which to locate it, a. map thirty years old made upon a survey of the premises for plaintiff’s, grantor at the time of the conveyance and one made about the same time-by a grantee of plaintiff’s grantor are admissible for the purpose of showing the extent of the possession and of the claim of title of plaintiff and. his grantor. 4

    3. Same.
    But a map made some years after for the use of the assessors of the-town and for their -convenience in making lot assessments, the data from which it was plotted not being shown, is not an ancient document and is-not admissible. If the lines, courses, distances and monuments represented upon it had been gathered from any authentic source, which made-it admissible as evidence, those facts should be first proved.
    3. Same—Cobnty map—Code Civ. Peo., § 933.
    Certified copies of two maps from the state comptroller’s office were admitted without any verification of their authenticity or correctness. Meld, error. Section 933 of the Code does not authorize the receipt of a certified copy of a paper filed in a public office unless Unoriginal, if produced, is competent evidence.

      Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff entered upon a verdict upon a trial at Ulster circuit.

      John U. Van Mien, for app’lt; William Lounsbery, for resp’fc

       Reversing 39 St. Rep., 706.

   Maynard, J.

The only question litigated in this action was the true location of the plaintiff’s easterly boundary line.

The premises are a part of Great Lot 8, Hardenburgh Patent, town of Shandaken, Ulster county, which has been subdivided by a line traversing it from its northerly to its southerly bounds ; or from the Greene county line to Great Lot No. 7.

The lands on the east of this subdivision line are known as the Livingston Tract, and on the west as the Elmendorf and Duer Tracts. The defendant is in possession and claims to be the owner of about 1,000 acres in the Livingston allotment, and bounded on the west by this subdivision line, and abutting upon the lands of the plaintiff. It is conceded that the plaintiff cannot-recover in this action if the place where the alleged trespasses, were committed is within the bounds of the Livingston Tract. It is also not disputed that the northerly boundary of plaintiff’s, premises is for the greater portion of the distance the division line between the Elmendorf and Duer Tracts. The plaintiff derived his title from William P. Bussell in 1856, who at that time-claimed to be the owner of $1,787 acres of lands adjoining plaintiff’s lot in the Elmendorf Tract and also abutting on the Livingston line.

It appears that Bussell derived his claim of title to the„ plaintiff’s lot from a sheriff’s sale in 1855, upon execution against Nicholas Elmendorf: but it is not shown how he obtained title, or whether he had any title to the adjacent lands. On the same day that Bussell contracted to sell to plaintiff, he conveyed the 1,787” acres to B. S. and T. 0. Wey, by warranty deed, in which the-lands granted are bounded on the southerly side by the division line between Great Lots 7 and 8; on the easterly by the Livingston line ; and on the northerly by plaintiff’s lands. The start* ing point in this deed is on the east bank of the Esopus creek, where it intersects the division line between the Great Lots; and running along that line an approximate course and distance to the southeast corner of the Livingston Tract, which is described as a heap of stones; and from thence along the Livingston line, an approximate course and distance, to a corner to be established as the southeast corner of the plaintiff’s lot. The lands described in the Wey deed and in plaintiff’s deed comprise all the lands in the Elmendorf tract bounded on the Livingston line.

Plaintiff first had a contract from Bussell in 1856, under which he was entitled to immediate possession, and November 15, 1858, he received his deed. At the time plaintiff went into possession, Bussell and Conrad Brodhead, a local surveyor of some repute, went with him around his lot, surveying it with a chain and compass, and locating the boundaries and courses to which plaintiff has always claimed possession, and which would include the lands, now in dispute.

In 1858 or 1859, the Wey brothers procured Brodhead to make ■a survey and map of the premises described in their deed, and on which he made the same location of .the Livingston line and of the easterly corner and southerly boundary of plaintiff’s lot, as when he made the survey at the time plaintiff took possession from Russell. Brodhead died about eleven years before the trial The map was identified and shown to have been in the possession of the Weys from the time it was made, except when temporarily loaned, and the correctness of its plotting was verified by a surveyor who had made a survey of the plaintiff’s lot and the Wey lot. In other words, it was shown to be a correct representation of the courses, distances and monuments described in the deeds from Russell to plaintiff and the Weys respectively.

This map, together with the Wey deed, was received in evidence, under defendant’s objection, for the purpose of showing the ■extent of the possession and of the claim of title of plaintiff and his grantor, and we think that, for such purposes, they were clearly admissible. In view of the other proof that Brodhead, acting for Russell, made a survey of plaintiff’s premises and established their boundaries, and that the Wey deed was cotemporaneously executed, in which their lands were bounded upon the plaintiff’s and both made to have the same corner upon the Livingston line, the deed was competent evidence for the purpose of fixiiig the limits of the plaintiff’s possession.

As the map was merely a delineation of the courses and distances in the deeds, it follows that, if shown to be correct, it could be properly used to impress upon the minds of the jury in a more intelligible form the extent and location of the lands described in plaintiff’s deed. It is immaterial when or by whom it was made. It may have been plotted upon the day of the trial; but if it appeared that it was a faithful outline of the surveys contained in the deeds from Russell it would be admissible. Neither the deed or the map in any wise concluded the defendant, but they aided plaintiff in establishing his claim of title and right of possession to the disputed territory. Having shown that he entered more than thirty years ago under a written instrument purporting to convey the locus in quo, and that he had cleared and improved and actually occupied a part of the premises, he had established a constructive possession to the whole lot described in .his deed. Such a possession is sufficient to enable the occupant to' maintain an action for trespass against an intruder, or any person not having a superior title or a paramount right of possession. Code, § 870; Munro v. Merchant, 28 N. Y., 9; Jackson v. Woodruff, 1 Cow., 276; Thompson v. Burhans, 61 N. Y., 52; Edwards v. Noyes, 65 id., 425. When the plaintiff had proved these facts his case prima facie was complete; but the defendant could defeat the action un■der the pleadings in two ways; either by showing that the plaintiff’s deed aid not actually include the lands where the trees were cut, or that defendant had a superior right of possession. There was a sharp conflict in the evidence as to the true location of the Livingston line.

One of the theories of the plaintiff was that the boundary between the Livingston tract and the Duer and Elmendorf tracts-was not a continuous straight line. It was claimed that there was. a jog or offset at the point of intersection with the northerly-boundary of the Elmendorf tract, which carried it for the rest o£ the way some nineteen chains farther to the east, and thus included the lands where the alleged trespasses were committed in-the Elmendorf allotment. This claim seemed to be essential to-the plaintiff’s case as presented upon this trial, because the monuments and lot boundaries along the easterly line of the Duer tract, indicated a course which, if extended straight through to the line of Great Lot Seven, would leave these lands on the easterly side of the division line and within the boundaries of the defendant’s, premises. To support this theory the plaintiff put in evidence a map of that part of Great Lot 8 lying in the town of Shandaken, made by one Bushnell, a surveyor, in 1874. This map^ showed the offset in the line contended for, and we think was, improperly admitted. It was made for the use of the assessors of the town and for their convenience in making the lot assessments. The data from which it was plotted is not shown. It was the act and declaration of a party with which the defendant was not in privity, and who had no authority to bind him in the matter. It was not an ancient document, but had been recently made, and the maker of it was present at the trial. If the lines, courses, distances and monuments represented upon it had been gathered from any authentic source, which made it admissible as evidence, those facts should have been first proved. A map is at the best but a representation of lands and objects existing, or which have at a given time existed, and, unless the facts outlined upon it are shown to have had an existence, or unless it is connected with or a part of some possessory act or claim of title of a party to the controversy, it is not competent evidence in an action of this character.

The respondent’s counsel contends that the correctness of this-map was verified by the testimony of the surveyor Van Etten y but we are unable to assent to such a conclusion. This witness had made a survey of the lands described in the deeds of the plaintiff and the Wey Bros., and testified that from the surveys thus made the Bushnell map correctly represented the Livingston line and the corner of the Elmendorf Tract. But the deeds were admissible and were admitted only for the purpose of fixing the limits of the possession of plaintiff and his grantor and the extent of their claim of title and characterizing it; and they could not properly be made use of for the purpose of verifying the town map and making it. competent proof to establish the location of the disputed line.

Before the close of the trial this map did become admissible, but only for a special or qualified purpose. Bushnell, the surveyor who made it, was examined as a witness for the defendant and gave material testimony with reference to the location of this line and of surveys recently made by him, which he claimed tended to prove that the Westerly boundary of the Livingston tract was a continuous straight line from the northerly to the southerly bounds of the Great Lot; whereas his map made for the town in 1874 represented it as having an offset at the point in controversy. The map then could have been properly received in evidence if offered for the sole purpose of impeaching his credibility as a witness and affecting the weight to be given to his testimony by the jury.. But it was offered and received as a part of the plaintiff’s affirmative case, and without restriction as to the use which the jury might make of it It could not have failed to have had an important bearing in their minds upon the determination of the question of the exact location of the Livingston line, and its admission was therefore an error, which this court •cannot overlook upon appeal.

For the same reasons the Ulster county map was improperly received in evidence. Certified copies of two maps from the state comptroller’s office were admitted without any other verification of their authenticity or correctness than was made of the Bushrtell map. Section 933 of the Code does not authorize the receipt of a certified copy of a paper filed in a public office unless the original, if produced, is competent evidence. ¡No proof was made which would have rendered the originals admissible, if they ¡had been offered instead of the copies.

Our attention has not been called to any statute which makes it the duty of the comptroller to cause such maps to be made and ■filed in his office. It was not shown when, or by whom, or for what purpose they were made, or how long they had been upon the public files. In some cases a map might be receivable in evidence as an ancient document, but it must purport upon its face to have been executed by competent authority and to have been found in the proper depository of such papers, or to have been made or referred to as a part of the muniments of title of the party in whose favor or against whom it is offered; or, where the maker is dead and it embraces large areas of territory, to have been so generally and publicly recognized to be correct as to afford safe grounds for the presumption that the lot owners in making their conveyances had in view the boundaries and monuments indicated ■upon it.

It is unnecessary to determine how far ancient reputation may be admissible to establish boundary lines. In any view .the proper foundation was not laid for the reception of the Bushnell map, "the county map and the Tappen and Kiersted maps, and they should have been excluded.

A new trial must, therefore, be ordered, with costs to abide the event

All concur.


author: Finch, J.

text:
    Emory Cole, Resp’t, v. The Mercantile Trust Co., Impl’d, App’lt.

      (Court of Appeals,

      Filed April 19, 1892.)

    Fraudulent conveyance—Insolvent Corporation—Rights op creditors.
    Plaintiff having sued the national Mining Co. for damages, it transferred. all its nraperty and assets to the M. Iron Co. for a nominal consideration and the assumption of its debts, and the latter executed a mortgage to defendant covering all its property. In this creditor’s action to set aside the conveyances. Held, that such a transfer, which involves the destruction of the corporation and an abandonment of the purposes of. the organization, is illegal as against creditors whose rights are thereby sacrificed and their remedies destroyed. The prohibition of the statute is not limited to cases in which payment of some note or obligation has been previously refused.
    Appeal from judgment of the supreme court, general term, •second department, reversing judgment dismissing complaint m ■action to set aside a conveyance of property.

      Thomas Thacher, for app’lt; C. B Herrick, for resp’t

       Affirming 38 St. Rep., 34.

   Finch, J.

The plaintiff is a creditor of the National Mining ■•Company, a corporation formed and existing under the laws o£this state. He commenced an action to recover damages done to his property by the wrongful act of the corporation, serving the summons in October, 1887, and recovering judgment in July of the next year. During the pendency of the action all the property and assets of the debtor corporation were transferred to the Millerton Iron Company, also a domestic corporation, upon a nominal consideration except an assumption by the vendee of ¡the debts of the vendor, and thereupon the former executed a mortgage to the Mercantile Trust Company covering all its prop'erty, including that acquired from the National Mining Company. When the plaintiff obtained his judgment nothing remained upon which it was a lien and his execution was returned unsatisfied. He then began this action, in which he assailed the transfers made with a view of subjecting the property of the debtor corporation to the satisfaction of his debt. Upon the trial his complaint was 'dismissed, but the general term reversed the judgment and ordered a new trial. From that order the trust company alone appeals and has given the usual stipulation for judgment absolute.

The trial court has refused to find that the National Company was insolvent at the • date of its transfer, but did find that- such transfer suspended and terminated the regular business of the grantor, and was made and accepted with that purpose and intention. The practical effect was to dissolve the grantor corporation and subject its charter to forfeiture at the hands of the -state, for it voluntarily stripped itself of all its property and assets and became incapable, and intended to be and remain incapable, of performing its corporate duties. Such a transfer, which involves the destruction of the corporation and an abandonment of the purposes of its organization, is illegal as against creditors, whose rights are thereby sacrificed and their retoedies destroyed.

The transfer was illegal also because made in contemplation of insolvency. Those who accomplished it knew its necessary and inevitable effect would be to make the corporation unable to pay its debts and must be held to have intended that consequence of their acts. 1 do not agree to that reading of the statute which limits its prohibition to cases in which payment of some note or obligation has been previously refused. An interpretation so harrow would seriously maim and distort the obvious purpose of the statute and make a transfer in contemplation of insolvency good the day before a note matured and bad the day after. As against tlje creditor the transfer to the Millerton Company was illegal and in fraud of his rights. The assets of a corporation area trust fund for the payment of its debts upon which the creditors have an equitable lien both as against the stockholders and all transferees except those purchasing in good faith and for value. Bartlett v. Drew, 57 N. Y., 587; Brum v. Ins. Co., 16 Fed. Rep., 143; Morawetz on Corporations, § 791. The Millerton Co. was not such a purchaser. It parted with nothing. It knew and participated in the illegal purpose to destroy the National Company, to make it utterly insolvent, and to deprive its creditors of the trust fund upon which they had a right to rely, and so-they were at liberty to set aside the transfer so far as it barred their remedy and to enforce their equitable lien upon the property in the hands of the transferee.

It is not a sufficient answer to say that the transfer was rather formal than real, because before its occurence the Millerton Co., having the same stockholders and officers, managed and conducted the business of the National Company before the transfer as well as after, and that what occurred was a practical consolidation. Companies may consolidate, but under the permission and safeguards of the statute, all of which were disregarded, and what is-called the formal transaction cuts off and destroys the right of the creditor, and is being used for that exact purpose.

Neither is it an answer to say that the creditor is not harmed by a change of the party liable to pay unless there be some disproportion in the assets. He cannot be forced to change his debtor against his will, and it appears in the proof that the transfer to the Millerton Company was followed by a mortgage sweeping into its lien and peril the very property transferred.

We are satisfied, therefore, that the plaintiff was entitled to judgment of sequestration and for a receiver, and so the order of the general term was right The judgment obtained by Chapman is not a bar to the remedy. It is not relied upon for that purpose and the appointment of the receiver was without notice to the attorney-general, as the law required. Laws of 1883, chap. 378. In the present case the plaintiff must give such notice when he applies for the appointment.

The rights of the mortgagee, who is the present appellant, need not now be accurately determined. Whether that mortgage was valid at all, for want of proper consents, or whether any of the bondholders have acquired equities superior to those of the plaintiff, may or may not become questions in-the future. Enough appears to show that some of them do not stand in the attitude of Iona fide creditors and that the remedies of all may be confined to the property of the Millerton company not derived from the-National until at least the former is exhausted. Those questions, however, may be left to the developments consequent upon further proceedings;

The order of the general term should be affirmed and judgment absolute for the plaintiff be rendered upon the stipulation, with costs.

All concur.


author: Earl, Ch. J.

text:
    In the Matter of the Application of Janet Kingsland, Adm’rx, App’lt, v. George W. Murray, Resp’t.

      (Court of Appeals,

      Filed April 19, 1892.)

    1. Appeal—Sale of decedent’s bead estate.
    Where the case involves no question of law, but merely questions of fact as to which the surrogate and general term differ, this court has no jurisdiction to interfere with the order of the general term reversing an order of the surrogate directing the sale of decedent’s real estate to pay debts.
    3. Decedent’s estates—Sale of beal estate to pay debts—Code Civ. Pbo.; § 3759.
    Before the surrogate can make a decree under § 3759 of the Code for the sale of the real estate, the petitioner must establish that all the personal property of the decedent which could have been applied to the payment of the decedent’s debts and funeral expenses has been so applied.
    Appeal from judgment of the supreme court, general term, first department, reversing a decree of the surrogate directing the sale of real estate.

      F. H. Underhill, for app’lt; Daniel Finn, for resp’t.

       Affirming 38 St. Rep., 590.

   Earl, Ch. J.

Henry Foster Topping died November 15,1885, and on the 23rd day of November his son and only heir at law, Henry Foster Topping, Jr., was appointed his administrator by the surrogate of New York. On the 6th day of January, 1886, the son gave to Daniel Finn a mortgage on the real estate left by his father for $8,500 and on the 10th day of February thereafter he sold and conveyed the real estate to the respondent George W-Murray, subject to the mortgage. On the 17th day of January, 1888, the letters of administration granted to the son were revoked, and on the 21st day of May of the same year Janee Kings-land, the petitioner in these proceedings, was appointed administratrix de bonis non in his place. On the 21st day of November, 1888, she filed a petition in the surrogate’s court to procure a sale of the real estate left by the intestate for the payment of his debts. Murray, the present owner of the real estate, appeared and contested the proceedings, and the surrogate referred the matter to a referee who found that there were debts against the intestate to the amount of $1,543; that the administratrix had proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of the debts of the decedent, that it was insufficient for that purpose, and that it was necessary to apply the real property of the decedent to the payment of his debts. The findings of the referee were finally confirmed by the surrogate, and he made a decree ordering a sale of the real estate. From that decree Murray appealed to the general term, where it was reversed upon the law and the facts, and the petition was dismissed, with costs.

The evidence showed that the administrator Topping had received for the sale of certain corporate stock belonging to the decedent $1,500 and there was certain other property consisting of implements, cattle and other chattels upon the farm of the decedent, which at his death and at the time of the appointment of the administrator was worth $2,547. ¡None of the decedent’s property had been applied to the payment of his debts, and Topping, the administrator, had not been called to account. The surrogate apparently proceeded upon the theory that it was incumbent upon the petitioner only to show that she had proceeded with reasonable diligence to apply all the property which came into her hands in payment of the debts of the decedent. At the general term, as we infer from its opinion, it was held that it was incumbent upon the petitioner to show that both she and the prior administrator had proceeded with proper diligence, and had applied the property of the decedent to the payment of debts, and that it was insufficient for that purpose; and it held that from the evidence it did not appear that the property of the decedent at the time of his death was insufficient to pay his debts, and that the administrator and administratrix had proceeded with reasonable diligence in applying it to that purpose, and upon that ground it reversed the decree of the surrogate.

The title to real estate upon the death of the owner vests immediately in his heirs and devisees, and at common law they took it free from his general debts. " It can be taken for the payment of debts now only by virtue of statutes, and the statutory provisions must be strictly pursued in order to justify its sale.

It is provided in § 2759 of the Code that “ a decree directing the disposition of real property, or of any interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate; ” and among the facts so to be established are the following: “ That all the personal property of the decedent, which could have been applied to the payment of the decedent’s debts and funeral expenses, has been so applied; or, that, the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses; and that it is insufficient for the payment of the same, as established by the decree.”

There seems to be some difference of opinion between the surrogate and the general term as to the scope and meaning of this provision. We think the meaning is reasonably free from doubt. If the decedent at the time of his death left sufficient personal property which could have been applied to the payment of his debts and funeral expenses, in the exercise of reasonable diligence on the part of his executors or administrators, then resort cannot be had to the statutes for the sale of his real estate for the payment of his debts. In that event the personal property is the fund for the payment of his debts, and the creditors must resort to that through the executors or administrators. If they waste or squander the personal property.so that it becomes insufficient for the payment of the debts, the only resort of the creditors is to them to enforce their personal responsibility, and they cannot in that case cause the real estate to be sold under the statutes referred to. But if the personal property left by the decedent at the time of his death was insufficient to pay his debts, or if the executors or administrators proceed with reasonable diligence in applying it to the payment of his debts, and it proves insufficient for that purpose, then, and then only, a case is • made for the sale of the real estate. So, in the language of this section, before the surrogate can make a decree for the sale of the real estate the petitioner must establish that all the personal property of the decedent which could' have been applied to the payment of the decedent's debts and funeral expenses has been so applied. If he establishes that, then he need go no further, and the surrogate is authorized to make the decree. If he cannot establish that, but establishes the other alternative, that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of the debts and funeral expenses, and that it is insufficient for the payment of the same, then, even if it has not all been so applied at the time of the petition, the surrogate is authorized to make the decree.

Our construction that sub-division 5 of § 2759 above quoted, has reference to the personal property left by the decedent at the time of his death, or at least to that which came or could have come into the hands of his executors or administrators upon their appointment, is strengthened by reference to sub-division 4 of § 2752, which provides that the petition for the sale of the real estate, if presented by an executor or administrator, must set forth the amount of personal property “ which has come to his hands or those of his co-executors or co-administrators, if any, the application thereof and the amount which may yet be realized therefrom.” It is also fortified by a reference to all the statutes upon the subject of the sale of the real estate of a decedent for the payment of his debts passed in this state prior to the enactment of the present provisions of the Code. Chapter 27, Laws of 1786, passed April 4th of that year; chapter 77 of the Laws of 1801; the act of April 8, 1813 (1 Revised Laws, 444); 2 Revised Statutes, 100, as amended in 1830; chapter 460, Laws of 1837. While there are no decisions precisely in point, the following give some countenance to our construction: Skidmore v. Romaine, 2 Bradf., 122: Corwin v. Merritt, 3 Barb., 341; Moore v. Moore, 14 id, 27; Tucker v. Tucker, 4 Abb. Ct. App. Dec., 428; Moser v. Cochrane, 107 N. Y., 35; 11 St. Rep., 200; Reed v. Lozier, 15 St. Rep., 299.

It is true that under this construction of the statute an irresponsible executor or administrator may so waste and misappropriate the personal property of a decedent that none of it could be applied to the payments of his debts, and that thus a proceeding to sell the real estate could not be maintained for the reason that in such a case it could not be shown that the executor or administrator had proceeded with reasonable diligence in converting and applying the personal property to the payment of debts; and therefore there may be cases, although rare, where the creditors may not be able to compel the sale of the real estate of the decedent for the payment of their debts under the provisions of the Code referred to. But creditors are not confined to such a proceeding in their efforts to compel payment of their debts.

During three years after the granting of letters testamentary, or of administration, they have their remedy against the personal property of the decedent, and against the executors or administrators, for any waste or misappropriation of the soma During that period they may resort to the real estate, and by showing a compliance with the provisions of the law, they may compel a sale of it for the payment of their debts. But if they fail to get payment within the three years out of the real or personal estate left by the decedent, then after that time further remedies are given to them by provisions of law found in the Code. §§ 1837 to 1860. They may sue the surviving husband or wife or next of kin of the decedent who have received any of his personal property. If they fail to recover their debts in full from them, then they may sue any legatee who has received any of the property or assets of the decedent. If they fail to recover from any of the persons who have received the personal property of the decedent, then they may sue and recover from the heirs who have received any of the real estate, or its proceeds. If they fail to recover the full amount of their debts from the heirs, then they may resort to the devisees who have received any of the real estate or its proceeds. Therefore, taking all the provisions of the law, the cases must be very rare where a creditor proceeding with proper diligence would be unable to recover payment of his debt if the decedent at the time of his death left ample property for that purpose.

Here there was evidence tending to show that the decedent at-the time of his death left sufficient personal property which came into the hands of his administrator to pay all his debts. The inference from the evidence is that he misappropriated and wasted a large part of it. There is also evidence tending to show that the administratrix de lonis non did not proceed with reasonable diligence. There had been no effort made to procure an accounting from the administrator, or to enforce his responsibility for personal property wasted or misappropriated. Even if it can be said that he is insolvent and unable to respond, there has been no effort made to collect anything from the sureties upon his bond as administrator. Upon these matters the decision of the surrogate is not conclusive. His judgment and decision upon the facts were reviewable at the general term. Code, §§ 2576, 2586, 2587.

Where the appeal in such a case to the general term involves questions of law the aggrieved party may take a further appeal to this court. If the general term reverses upon questions of law only, an appeal may be taken to this court from its decision. Where the evidence is conflicting or where it is of such a nature that diverse inferences may be drawn therefrom the decision of the general term upon questions of fact cannot be reviewed in this court. In the Matter of Ross, 87 N. Y., 514. This is not an appeal in an action provided for in § 1338 of the Code, but it is an appeal from an order made in a special proceeding in the surrogate’s court. Section 1337 of the Code provides that a question of fact- arising upon conflicting evidence cannot be determined upon an appeal to this court, unless where special provision for the determination thereof is made by law. No special provision is found in the Code authorizing a review in this court of a question of fact in any special proceeding, or upon any appeal from the surrogate’s court. As this appeal, therefore, involves no question of law, and involves merely questions of fact, as to which the surrogate and the general term differ, we have no jurisdiction to interfere with the order of the general term, and it should, therefore, be affirmed, with costs.

All concur.


text:
    Isaac Hoag, Pl’ff, v. The Town of Greenwich, Def’t.

      (Court of Appeals,

      Filed April 19, 1892.)

    1. Town bonds—Validity.
    Commissioners of the defendant town, appointed for that purpose, in 1871 executed thirty bonds to the amount of §40,000, payable in 1891, but twenty-six of these were not issued until after the passage of Chapter 925, Laws of that year, authorizing the issue of bonds payable in less than ■thirty years. Held, that although the four bonds issued before the said date were void as bonds, it does not follow that the loan was void, and the law would imply a promise on the part of the town to repay the loan as agreed at the end of the thirty years, with interest.
    3. Same—Laws 1871, Chap. 925, § 6.
    The bonds issued after the passage of the act of 1871 were valid, notwithstanding they violated the statutory provision that no more than ten per cent of the entire loan should fail due in one year.

      (Brownell v. Town of Greenwich, 114 N. V , 518; 24 St. Rep., 6, followed.)
    Appeals by both parties from j udgment of supreme court, general term,third department, affirming judgment of special term declaring invalidity of certain bonds issued by the town of Greenwich and the validity of certain other bonds issued by said town, and directing judgment for interest on the latter bonds.

      D. M. Westfall, for pl’ff, Esek Cowen, for def’t.

       Modifying 39 St. Rep., 969.

   Finch, J.

The objection urged on behalf of the parties defending this action, that the judgment of the county judge authorizing the bonding of the town was not shown to have been founded .upon the necessary jurisdictional facts, is answered by the provision of the statute which explicitly enacts that “ such judgment and the record thereof shall have the same force and effect as other judgments and records in courts of record in this .state.” Laws of 1869, chap. 907, § 2, Laws of 1871, chap. 925, § 2. The evident purpose and legitimate effect of this provision is to clothe the judgment with the, usual legal presumptions which attend the adjudications of courts of record having general jurisdiction, and to throw the burden of proving a lack of jurisdiction upon those asserting it. Craig v. Town of Andes, 93 N.Y., 410; Brownell v. Town of Greenwich, 114 id., 518; 24 St. Rep., 6. No such want of jurisdiction was shown in the present case and'the contrary must be presumed. So that we enter upon our consideration of the case at bar under very different circumstances from those which have dictated the drift of our earlier-decisions. In most of them the difficulties encountered were vital because they struck at the original and primary authority to borrow-the money or incur the municipal obligation, while here-that authority is fully established and narrows the inquiry to an. alleged mistake or error in its execution.

A further objection, affecting many, though not all of the bonds, grows out of a prior adjudication in which the error referred towns sought to be cured by a reformation of the securities.. Potter v. Greenwich, 92 N Y., 663. There appear to have been three-counts, in the complaint m that case, two of which were eliminated by demurrers affecting the form and sufficiency of the-pleading, and leaving only the equitable cause of action for a. reformation of the bonds to be finally determihed in this court. ■A reference to the decision made shows very clearly that the-final judgments entered upon the, stipulations were conclusive only upon the equitable cause of action and the claim of the-parties to have the bonds reformed. The right to recover at law without such reformation was not before the court, was not determined, and appears to have been expressly reserved.

Outside of the questions respecting the form of the last two-counts in the complaint, which arose upon the demurrers, and which the action of the court shows were not upon the merits,, the only issues which went to trial and were involved in the judgment were those which were pertinent to the equitable relief sought: and the final adjudication denying that equitable relief left open to the bondholders their remedies at law upon the unreformed instruments, or the transactions out of which they sprang.. Both .the trial court and this court so declared. We said in the-opinion given : “ It is contended by the learned counsel for the appellant that the bonds are valid as they now read. That seems-also to have been the opinion of the trial judge. * * * If that is so, and whether it is so or not is not in question here, for the plaintiff presents the case m no such aspect, no aid from a court of equity is needed, and the plaintiff has vexed the court without cause/ He should be left to his remedy when the bond matures.” The judgment absolute, at first described as “ upon the merits," was corrected by striking out that clause, and now stands as sustaining the demurrers to the last two counts upon, the ground, that they did not state a cause of action, and dismissing the complaint so far as it sought equitable relief. That judgment, therefore, and those m the other cases which depended upon it, settle only a question of pleading, and the right to a reformation of the bonds. They furnish no bar to the present, cause of action.

The bonds which form the subject of this controversy divide-themselves into two groups according as they were issued before or after May 12, 1871. Four bonds issued before that date have been adjudged void, and the remaining twenty-six, issued after that date, have been declared valid. Each party appeals from so-much of the judgment as is adverse. The act of 1869, which authorized the issue, directed the bonds to be made payable in thirty years. The act of May 12, 1871, authorized their issue-payable in not to exceed thirty years, chap. 925, § 6, but further-directed that not more than ten per cent of the total authorized debt should be made payable in any one year. All the bonds issued were drawn so as to become due in twenty years, and that fact is relied upon to defeat both groups of the bonds in controversy.

There are several facts essential to a just appreciation of the-nature and character of the difficulty in addition to those which have been already mentioned. The transaction authorized was-a borrowing of money by the town to be used for certain specific purposes. Describing it as a sale of the bonds does not alter the real nature of the contract. The town could not sell its own promise to pay, and the bonds in its hands were that and nothing more. They acquired no vitality as securities capable of a sale until they had obtained a valid inception in the hands of the first holder. The consideration described as paid by him is in truth a loan of so much money to the town for which he takes the town’s-promise to pay in the form of a bond. The result is in no respect different from what it would have been if the town borrowing the money had given as a voucher its promissory note. The-bond and the note alike are but evidences of the debt which itself is the obligation to repay the loan. I think the authorities fully justify this view of the nature of the transaction. Coddington v. Gilbert, 17 N. Y., 489; Eastman v. Shaw, 65 id., 527; Ahern v. Goodspeed, 72 id., 108.

It is important, next, to consider and define the position and' attitude of the commissioners appointed under the act of 1869. By force of the judgment of the county judge they became the-authorized agents of the town, empowered to borrow upon its credit the sum of forty thousand dollars, but restricted as to the-term of credit to be given. That agency is denied by the appellant, who insists that no such relation was established, citing two-decisions of this court as authority. Gould v. Town oj Sterling, 23 N. Y., 456; Horton v. Town of Thompson, 71 id., 513. But these cases, and there are others to similar purport, rest their denial of the agency upon the fact that no valid authority had been conferred at all, by reason of a failure to obtain the consent of the taxpayers. Until fulfillment of that condition precedent the commissioners were utterly without power, and stood in no relation whatever to the town.. But here the condition precedent was-fulfilled. The judgment established the relation. The power to act as agents of the town in borrowing the money and applying-it as directed was conferred, and what followed became a question, not of the existence of the power, but of the manner of its-execution.

Precisely that distinction was recognized in Gould v. Town of Sterling, supra, where the court said, adverting to the case of the State of Illinois v. Delafield, 8 Paige, 527; “ there the State was jthe party to be bound, and had by law appointed certain officers its agents and conferred upon them power to execute and negotiate its bonds. The difficulty consisted in the irregular manner in which the power was executed, not in the creation of the power itself. The distinction is as plain as that between conditions precedent and subsequent in general.” In Gould v. Town of Oneonta, 71 N. Y., 298, the character of the commissioners as agents of the town when acting within the scope of the authority conferred by the statute is fully recognized, and so we must remember in the further progress of the inquiry that we are dealing with the acts of duly authorized agents of the town in the execution of the .power.

Now, what those agents did as it respects the four bonds issued before May 12, 1871, was within the scope of their authority in ■every respect except one. They could borrow the money which the bonds were meant to secure for and in behalf of the town ; =and they did so borrow that money and by that act lawfully ■bound the town to repay it. They could appropriate it on behalf ■of the town to the purchase of the designated railroad bonds, and did so appropriate it and the securities bought became the lawful property of the town. What these agents could not lawfully do was to bind the town to a repayment by bonds maturing in ■twenty years when the statute required them to run for thirty, and that mistake they made. We may concede that for such reason the four bonds were void as bonds, as vouchers or securities, but it does not at all follow that the loan was void, that the borrowing was unlawful, that the lender lost his money and the town was at liberty to perpetrate a disgraceful robbery by means ■of the fault or mistake of its own agents. Treating the four bonds as void, we are required to dismiss them from the transaction, but not to repudiate the transaction itself. They were unlawful incidents of a perfectly lawful transaction and may be disregarded while the transaction stands.

Conceding them to be void they become nullities, mere blank and worthless paper, to be treated as if they had never existed, •and to be appealed to for no purpose, at least by the party who avoids them. Dismissing them entirely we may turn to what remains, and I am confident that enough remains to work out that measure of justice which we all feel it to bé our duty to attain. 'Turning to the transaction itself, there appear to be two further facts, either proved without contradiction or involved in the findings. One of the commissioners testifies that he meant and intended to borrow the money and issue the .bonds in strict accordance with the enabling statute, and there is not the least doubt of that fact. It is found that those who loaned the money did so in ■entire good faith, and that is true only upon the theory that they intended a loan in obedience to the statute and not as a fraud upon the law There is no difficulty therefore about the intent of ^either party. Their minds met in one common purpose. The lenders meant to lend and the borrowers to borrow in accordance with the terms of the law. If the 'vouchers given indicated a •different intent they have ceased to have any force and owed their form to some inadvertence or mistake as to what were in fact the requirements of the statute which both parties intended to obey and under which it was their purpose to contract. Throwing aside the bonds, therefore, we have left this substantial transaction. The commissioners, duly appointed as and adjudged to be the agents of the town to borrow for its use and upon the credit of the town the sum of $40,000, did so borrow that sum and no more, of which $4,000 was loaned by the holders of the four bonds in question, both parties intending a loan under the statute and according to its terms, which sum the town received through such authorized agents but for which it has given no voucher or obligation or express promise of re-payment. Louisiana v. Wood, 102 U. S., 294. Gan there be any reasonable doubt that upon such a state of facts the law will imply a promise to re-pay the loan at .the time and in the manner which is alone possible and valid, which was in the contemplation of both parties and which each ■fully meant and intended ? I think not.

It seems to me that a refusal to recognize and enforce the substantial transaction for lack of an express promise when one may .and should be implied, and is shown to be in full accord with the ■purpose and intention of both parties, and accomplishes complete :and accurate justice, would be a perversion of our plain duty. I think, therefore, that we should hold that the town of Greenwich is indebted to plaintiff in the sum of $4,000 for which the void bonds were executed payable at the end of thirty years from the ■date of the loan, with interest thereon payable semi-annually, and should recover judgment for so much of the interest unpaid and in arrears as was due and payable at the commencement of the action.

.As to the group of bonds issued after May 12,1871, and which, because payable at the end of twenty years, violated to some extent the statutory provision that no more than ten per cent of the entire loan should fall due in any one year, we agree with the general term and hold them valid upon the ground stated by Vann, J., in Brownell v. Town of Greenwich, supra. While we have had some doubts as to the application of the doctrine asserted in- that •opinion to municipal corporations, Bank of Batavia v. N. Y., L. E. & W. R. R., 106 N. Y., 199; 8 St. Rep., 209; Parker v. Sup's Saratoga Co., 106 N. Y., 392; 11 St. Rep., 211, and still think its application to such bodies should be attended with a degree of limitation and restraint, we see no reason why it should not apply where the limit of the general authority has not been exceeded, where no burden beyond that authorized has been imposed by some increase of the permitted debt, and where the defect complained of is in the mode and manner of executing and carrying out the general power conferred. To that extent we are prepared to approve the application of the doctrine referred to as applied in the Brownell case, and as the general term have applied it to -.the present one, reserving the question whether it should have a -wider range to an occasion which compels the inquiry.

The extra allowance awarded- should be computed upon the ‘•amount of interest recovered and not, as was done, upon the amount of the bonds.

The judgment should be modified by allowing a recovery, additional to that awarded at special term, for the interest upon the loan represented by the four bonds issued before May 12, 1871, and computing the extra allowance only upon the entire interest recovered in this action, and, as modified, should be affirmed. The plaintiffs should also recover costs.

All concur, except Gray, J., who concurs as to the bonds other than the four issued before May 12, 1871, and in respect to those-he concurs in result. - Maynard, J., concurs in result.


text:
    The People ex rel. Charles H. O’Connor, Resp’t, v. John P. Adams, Commissioner, App’lt.

      (Court of Appeals,

      Filed April 19, 1892.)

    1. Veterans—Discharge—Temporary employment.
    The relator, a Union veteran, and three others, were appointed temporary clerks in the department of public works of the city of Brooklyn, the-relator being assigned to do the work of a certain bill clerk, who was temporarily assigned to the cash room in the same department. On the latter returning to his accustomed duties, relator was discharged. Held, that relator was not entitled to be reinstated under Laws 1887, chap. 465, which próvidos that “honorably discharged Union soldiers shall be preferred for appointment and employment,” as this was a mere temporary employment; that he was not discharged; only when his services were no longer needed, he was simply notified of the fact.
    2. Same—Laws 1887, chap. 708.
    Chapter 708 of the Laws of 1887, providing that Union veterans should not be removed, except for good cause shown after a hearing, and shall hold position during good behavior, does not apply to relator, as he was-appointed for a temporary purpose.
    Appeal from order of the supreme court, general term, second department, reversing order of the Kings county court denying motion for mandamus to restore relator to his position as clerk in the department of public works of the city of Brooklyn, and granting said motion.

      William T. Gilbert, for app’lt; William J. Gaynor, for resp’t.

         Reversing 25 St. Rep., 351.

   Earl, Ch. J.

On the 8th day of May, 1888, the commissioner of city works of the city of Brooklyn gave notice to the city civil service commissioners that there were required for immediate use in the bureau of water rates the services of four temporary clerks; at a compensation of $100 per month, and he requested that they be furnished without delay. On the receipt of this notice and requisition, the civil service commissioners certified to the commissioner of city works for temporary clerks the relator and three other persons, and they were appointed. It appears that the water rates of the city of Brooklyn become payable on the first day of May of each year, and that during that month there is an unusual rush of business, for the transaction of which temporary clerks are needed. The relator was assigned to a particular position in charge of the bill desk for the ninth, twenty-fourth and twenty-fifth wards of the city. The regular clerk for that position was temporarily assigned to-the cash room in the same department. On the 9th day of June thereafter the regular clerk returned to the performance of his usual duties, and the necessity for the relator’s employment ended, and the following notice was then sent to him by the chief clerk of the - department of city works; “ Sir—I am directed by the commissioner to notify you that your services are no longer required by this department after this date.” Thereafter the relator ceased to act as temporary clerk, but the other three temporary clerks who were appointed at the same time and assigned to other duties in the same department were retained.

The relator was an honorably discharged Union soldier; but the other three temporary clerks had not been soldiers. Hence he claims that he should have been retained in his employment as temporary clerk and that some one of the others should have been •discharged. He applied for a peremptory writ of mandamus to compel the commissioner of the departihent of city works to recognize him as a clerk in the bureau of water rates and allow him to have and hold the position and employment and receive the sal.ary attached thereto. The court at special term denied the writ, but upon appeal to the general term the order of the special term was reversed and a writ of peremptory mandamus ordered to be issued commanding the commissioner of city works to recognize the relator in the department of water rates by virtue of his ap■pointment thereto on the 8th day of May, 1888, and “ as the person lawfully entitled to such clerkship, and restore him to and place him in possession of said office, position and clerkship, and permit him to render service therein, and have and receive the ■salary attached thereto, and otherwise do what may be lawful and necessary in the premises to vest said relator with the said office, position and clerkship de jure and defacto.”

That order of the general term was made on the 29th day of •June, 1889, and if upheld the relator appointed to a temporary clerkship only would be restored to the office after more than a year had elapsed, and presumably long after the occasion for his ■services had ceased.

The relator bases his claim upon the provision contained in the •fict, chap. 464 of the Laws of 1887, § 1 of which provides that, u In every public department and upon all public works of the ■state of Hew York, and of the cities, towns and villages thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, honorably discharged Union soldiers and_ sailors shall be preferred for appointment and employment; ” and § 2 provides that, “ All officials or other persons having power of appointment to, •or employment in, the public service, as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.” These provisions do not apply to such a case as this. Here a temporary clerk was needed, and the relator, an honorably discharged Union soldier and, so far as appears, the •only one eligible, was preferred for appointment and assigned temporarily to the discharge of specific duties, and when those duties had been discharged and his services were no longer needed he was simply notified of the fact. In no proper sense was he discharged. He filled the appointment of temporary cleric for some time, and when his services were no longer needed they were dispensed with. It is impossible to see what just ground of complaint he has. It is true that there were three other persons-appointed as temporary clerks whose duties, as we must assume,, haa not been fully discharged, and they were therefore retained.. But he could lay no claim to any of their positions. He could not ask that they, who bad been lawfully placed in the position» of temporary clerks, should be discharged to make room for him, and there is no statute which gives him such a right. He had no greater right to claim their places than any other eligible honorably discharged soldier had, and he had no standing by writ of mandamus to compel the commissioner of city works to put him in one of the places filled by them.

Nor is the relators case governed by chapter 708 of the Laws-of 1887, which provides that, “ all persons holding positions in the city of Brooklyn, or county of Kings, receiving salary from said city and county treasury, who shall be an honorably discharged soldier or sailor of the late war of the rebellion, shall not be removed from such position, except for good cause shown after a hearing had, but such person or persons shall hold such, position for and during good behavior.”

That provision manifestly does not apply to such a case as this. The relator was not removed from any position. He was appointed for a temporary purpose, and when that purpose' was served he was simply notified that his services were no longer needed; and thus his term of service had ended. He had no right, whatever to any longer term. A temporary clerk could not claim to hold a position to which he was assigned “ for and during good behavior.”

We have, therefore, reached the conclusion that the learned general term fell into error, and its order should be reversed, and that of the special term affirmed, with costs in the supreme court and in this court.

All concur.