text:
    JOHN ACKLEY, as Executor, etc., of PHILANDER ACKLEY, Deceased, Appellant, v. FRANKLIN J. PARMENTER, Respondent.

      Statute of frauds — promise by one to pay the debt of another — estoppel — when a party may disprove facts he has admitted.

    The plaintiff being about to sell certain real estate mortgaged to him by one Silliman under a judgment of foreclosure, the defendant requested him to adjourn the sale saying that the debtor, Silliman, had placed in his hands ferry stock to bid off the property and pay the plaintiff his full debt, but that they were not quite ready, and that he would do so if the sale were adjourned tea days; that Silliman had put ferry stock into his hands for the purpose of paying for this property, and he would he prepared in the course of about ten days to pay for it.

      field, that the agreement was void, under the- statute of frauds, as being a verbal agreement to answer for the debt of another. (Potter, J., dissenting.)
    If the promise should be construed as one not to pay the debt, but to bid in thij property at the sale upon the adjourned day, for the full amount due on the mortgage, it seems that it would be void as a verbal agreement for the purchase of land. (Per Learned, P. J.)

      It seems, that the defendant was not estopped, by the statements so made by him, from showing upon the trial of this action that Silliman had not put any ferry .stock into his hands for the purpose stated. (Per Learned, P. J.; Potter, J., contra.)

    Appeal from a judgment dismissing the complaint upon the merits, entered upon a nonsuit directed at a circuit.

      James La/nsmg, for the appellant.

      JR,. A. Parmenter, for the respondent.
   Learned, P. J.:

This is an action on an alleged verbal promise made by defendant to plaintiff. Plaintiff was the mortgage creditor of Silliman. The mortgage had been foreclosed and a sale was about to take place. The alleged verbal promise is stated in somewhat varying ways, all substantially alike. He said that Mr. Silliman had placed in his hands ferry stock to bid off the property and pay me my full claim if I would postpone the sale for ten days.” If I would adjourn it ten days he would do so.” He stated that Mr. Silliman had put ferry stock into his hands for the purpose of paying for this property, and he would be prepared in the course of about ten days to pay for it.”

The question whether this was an original promise or a promise to pay the debt of another, may be considered in the light of the opinion in Belknap v. Bender (75 N. Y., 446), which comments upon, and somewhat criticizes, the general language used in Mallory v. Gillett (21 N. Y., 412). At page 451 it is said : “ If it (the promise) be made to the creditor, after it has become the duty of the promisor under his arrangement with the debtor to pay, then it is valid.” That is to say if, in the present case, at the time of the alleged promise the defendant had money from the ferry stock which he was bound to apply to plaintiff’s claim, then the promise was valid, because the promisor would have been, at the time, under a legal obligation to pay. And it is further pointed out at page 452 that, in the case then under discussion, the only duty the defendant owed was to convert the property and apply the proceeds upon the debts specified^ Now the present case is quite similar on that point. Supposing that the defendant, at the time of the alleged promise, had the ferry stock for the purpose of paying for this property; ” that fact, at the most, would imply only that he was to sell, or otherwise convert, the ferry stock and use the avails to pay the plaintiff’s debt. It does not appear, that he had done so. In fact the contrary appears. If the defendant’s duty, as indicated by the alleged promise, was only to use the ferry stock upon a trust to apply its avails to pay plaintiff’s debt, then he was liable only for the proper discharge of this trust. If in discharging that trust he had, before the time of the alleged promise, received the avails of the stock and had then promised to pay the plaintiff’s claim, he would have been, at the time, under a duty to pay that claim. Hence, his promise to pay it would have been a promise to pay his own debt.

It seems to me, therefore, that under the clear distinction pointed out in that last case there is nothing in the alleged verbal promise, or in the admissions connected with it, which shows that, at the time of making the promise, the defendant was under a present duty to pay anything to the plaintiff. And under that same case the mere possession of property transferred to the defendant by the debtor, Billiman, is not enough to make this promise, alleged to have been made by defendant, an original undertaking. The putting of stock into defendant’s hands for the purpose of paying this claim would not make defendant liable to pay it until the avails of the stock had been realized. And till then his verbal promise to pay would be a promise to pay the debt of another. And of course a promise to pay the debt of another must not only have a good consideration but must be in writing.

In this view it may not be necessary to inquire whether the defendant was estopped from proving that he had no ferry stock for any such purpose. This had been shown conclusively by the judgment introduced. And if the defendant were estopped by his .alleged admissions, we should have this condition of affairs, that ■the statute of frauds, declaring void parol promises to pay .the debt •of another, might always be evaded by proof of the promisor’s .admission at the time of -the promise, that he had received moneys from the original debtor. If such an admission, made at the time, 'is to be treated as an estoppel, so as to prevent the promisor from showing that, in fact, he had not received any such money, then the .statute is evaded. A promise, apparently collateral, is conclusively proved to be original, merely by the promisor’s admission at the time that it was an original promise. A plaintiff who wishes to •collect a bad debt out of some party other than the debtor, need ■only prove that the other party, in promising to pay. the debt, admitted that he had received money from the debtor, and then the •defendant is estopped from showing that such was not the fact. I •cannot think that this is a proper application of the doctrine of estoppel.

This alleged promise was perhaps not a promise to pay the debt. A payment of the debt would have discharged the mortgage; and that does not seem to have been tire meaning of the promise. But the promise, as alleged, may perhaps be construed to be a promise to bid the full amount at the sale. Then we have this state of ■affairs. The plaintiff having a lien on the land, and having acquired by his decree a right to sell that land for the payment of his lien, is about to make the sale. The defendant verbally promises (as we assume) to bid a certain amount at such sale. Is not this, if anything, a verbal agreement to purchase land, and therefore void ?

In the view taken above it may be unnecessary to decide this point; but it seems to me to have much weight.

I think the judgment should be affirmed, with costs.

Boar dm an, J., concurred.

Potter, J.

(dissenting) :

This is an appeal from an order directing the dismissal of the complaint and a judgment of nonsuit.

The motion was made at the close of the evidence in the case to which the plaintiff excepted and claimed the right to go to the jury upon the facts in the case, which was denied and an exception taken.

If therefore the facts proved, all or any of them which could by a jury be found in plaintiff’s favor, would give the plaintiff a cause of action, the judgment of nonsuit must be reversed and a new trial granted.

It is safe to assume facts most favorable to the plaintiff’s contention are those to be found in the testimony of the plaintiff himself and the witness Silliman.

The plaintiff testified substantially to these facts, that he had a judgment for foreclosure of a mortgage executed by the witness Silliman and a sale of the mortgaged premises, and the same were advertised for sale. That defendant on the day advertised for the sale, and at the place and time of sale, requested the plaintiff to adjourn the sale, saying Silliman^ the debtor, has placed in my hands ferry stock to bid off the property and pay plaintiff his fall debt, but that they were not quite ready, and if I would postpone the sale ten days he would do so. Plaintiff said he would and did adjourn the sale. That plaintiff relied upon those representations and did not endeavor to get bidders to attend the sale. On the adjourned day the defendant bid off the property on the sale thereof at $1,820, and the same was paid' and applied upon the judgment, leaving a deficiency, which this action is brought to recover.

The evidence of the witness Silliman was to a similar effect. From their testimony, was the defendant’s promise a binding obligation to pay plaintiff the amount of the deficiency ?

Now there can be no doubt that the promise was to pay the debt of Mr. Silliman, a third person, and the promise was not in writing. Though, the debt remains and the original debtor is liable upon it, jet if he transfers property to the promisor and he promises to pay the original debt in- consideration of such transfer, or if the promise is made to the creditor after it has become the duty of the promisor, by reason of some new relation between the debtor and promisor, springing out of the fact that property or a fund has been placed in the promisor’s hands, and requiring him to act in relation to the property by a return thereof, or to make disposition of the. property, or to use it in accordance with his agreement with the debtor, then the promise to pay the debt is not within the statute of frauds.

The case of Belknap v. Bender (75 N. Y., 448), in the opinion delivered by Judge Earl, and in which all the other members of the court concurred, affords illustrations of the distinction. In that case the debtors of the plaintiff had transferred to the defendant a saw mill with a stock of lumber sawed and to be sawed, to apply the proceeds thereof in payment of the claims of numerous creditors, including the plaintiff; it being understood that the defendant was only to pay the said claims from the proceeds of the said lumber. Judge Earl justly remarked : “ This action is brought by plaintiff not for an accounting under the agreement, * * * but to recover the whole sum due him from "Ward & McYicker, upon the theory that defendant had absolutely promised to pay it to him. Under that agreement he did not become personally liable to pay the plaintiff; he did not agree to pay plaintiff absolutely or with his' own funds. * * * (p. 449). But if Bender had purchased lumber of Ward & McYicker and thus became indebted to them, and in consideration thereof had agreed to pay a portion of his debt to the plaintiff in satisfaction of the amount due him from Ward & McYicker, such a promise would not have been within the-statute of frauds (p. 450). * * * If the promise in such case be made to the debtor in consideration of the transfer it is no doubt valid” (p. 451).

There is a clear distinction, and now well settled by the decisions of this and other States, that where the promisor receives property or anything of value from the debtor, and in consideration thereof' the promisor assumes the performance of a duty or the payment of a debt, he will be held to its performance or payment. If he were-not so held he would be practically permitted to obtain property without discharging the obligation which formed the consideration of its transfer to hirn, and thus the debtor as well as the creditor might be both injured and defrauded. In such case the promisor is not to be regarded as simply promising to pay. the debt of the creditor, a third person. But a new and more complex relation has «orne into existence, and one that makes the promisor the principal debtor, and the action in such case is brought to compel him to perform Ms promise. Lawrence v. Fox (20 N. Y., 268); Mallory v. Gillett (21 id., 412); Nichols v. Voorhis (18 Hun, 33), are based upon such distinction. Judge Comstock, in Mallory v. Gillett (supra), says: “ Where the law will imply a debt or a duty against any man, his express promise to pay the same debt or perform the same duty must in its nature be original.” Judge Polland, in Fullam v. Adams (37 Vt., 397), uses this language: “ The party making the promise holds the funds of the debtor for the purpose of paying his debt, and as between him and the debtor it is his duty to pay the debt so that when he promises the creditor to pay it, in substance he promises to pay his own debt and not that of another.” Throop on Yerbal Agreement (vol. 1, p. 535) lays down the rule as follows: “When the promisor absolutely controls the fund, but his application thereof to the payment of the debt due to the promisee will acquit him of a duty he owed the person who furnished it, the promise is not within the statute.” Now, the statement and promise of the defendant proved were to the effect that the debtor had placed in the promisor’s hands ferry stock to pay plaintiff his full debt, and if the plaintiff would adjourn the sale ten days he would do so. It does not appear whether this ferry stock had been transferred to the defendant to convert into money and out of the proceeds to pay plaintiff’s debt, or whether the stock had been absolutely sold by the debtor to the defendant, and he had promised, in consideration of such sale, to pay his own debt to the creditor, the plaintiff.

Nor is it, perhaps, material what the exact transaction was; for in either case the defendant, according to this evidence, had absolutely, in consideration of the transfer of the ferry stock to him by the debtor, promised to pay the plaintiff’s debt. Whether he would sell the ferry stock for enough to make him good, or to make a profit, is of no moment under this promise. He took the same risk to which every person is liable who takes a transfer of property and promises in consideration thereof, to pay a certain sum or to do a certain thing. He may make or he may lose, but he should perform his promise all the same.

But as remarked in the outset, the plaintiff is entitled to have the most favorable finding the jury could make from the evidence. The jury might have found from the evidence that Silliman had sold defendant the ferry stock, and that he agreed to pay the pla'ntiff’s debt therefor. It cannot be necessary to cite authorities to show that the receipt of the ferry stock, for the purpose -indicated by the testimony referred to, and the adjournment of the sale formed a good consideration for the promise. (Mallory v. Gillett, supra.)

The defendant introduced in evidence a judgment-roll to prove that the defendant was the owner of ferry stock in his own right, and that he did not hold it as the property of Silliman put into his hands for the purpose represented in the testimony of the plaintiff and Silliman.

This was “ objected to by plaintiff as immaterial and incompetent, that the agreement as shown here was that Parmenter had in his possession ferry stock belonging to Silliman sufficient in amount to pay the claim, and that he would pay it.”

The objection was overruled, and the plaintiff excepted.

Passing the consideration of the competency or pertinency of the evidence, the objection brings up the question of the estoppel of the defendant to prove that he was the owner of the ferry stock. The proof offered is not to show that the defendant did not represent that he had in his possession the ferry 'stock of Silliman, but that he, the defendant, owned it as a matter of fact. The proof was received and the effect of it was to establish that defendant, and not Silliman was the owner of that stock.

' ¥e have before seen the fact, that Silliman put ferry stock into the hands of Parmenter to pay this debt. Is the fact essential to make defendant liable to pay this debt. Without that fact defendant is not liable; but with that fact he is liable. For the purpose of this appeal the defendant had represented it was Silliman’s stock, and the plaintiff had relied upon the representation. It seems very clear that the learned justice who tried this case .committed error in receiving this testimony.

I think the defendant was estopped from proving that he was the owner of the stock. The court should have either held, upon this uncontradicted proof of the defendant’s declaration, that it was the stock of Silliman, or the court should have allowed the plaintiff to go to the jury, upon the proof of the defendant’s declaration, with the other proofs as to the ownership of the stock.

The effect of this proof upon the decision of the case by the court below is plain. The plaintiff proved that the defendant said Silliman owned the stock, and that he relied upon it as a fact. The fact represented is to be taken as true, in the motion for a non-suit, and yet the court decided to nonsuit upon the ground that it was not true. The court below after holding from the proof that the defendant was the owner of the stock, decided that it was a simple promise to pay the debt of a third person, and therefore void.

The question was not whether the defendant or Silliman owned the stock, but whether the defendant had estopped himself from showing he owned the stock by his representation that Silliman owned it; and upon which the plaintiff relied, and without which the defendant is not liable to the plaintiff.

We think that the representation that Silliman owned the stock, and that the defendant held it for the purpose of paying the debt, and that the plaintiff relied and acted upon the truth of the representation constituted, within all the cases, an estoppel. (Blair v. Wait, 69 N. Y., 113, 116.) At all events they constituted an estoppel upon the motion for a nonsuit, because if the evidence had been submitted to the jury, which was refused, the jury might have found an estoppel.

I do not deem it worth while to consider the other points more or less discussed by counsel. The question whether the arrangement was not for the sale of the l'ands covered by the mortgage is not properly presented upon this appeal, unless it is impossible that the arrangement was to pay the debt. But if the contract may have been regarded as a contract to pay the debt, then the court should not have nonsuited the plaintiff, for, as before stated, the plaintiff is entitled to have the case regarded in the most favorable’ aspect for the maintenance of the action. It was presented in that aspect upon the trial and upon this appeal. Having reached the conclusion that the case should be retried for the errors committed upon the trial, I do not deem it proper to consider the point that the action cannot be maintained by the plaintiff in his representative capacity.

The case was not tried, nor the nonsuit granted upon that point. It will develop itself upon the next trial, and perhaps may be curable there.

Judgment of nonsuit should be set aside, and new trial granted, costs to abide event.

Judgment affirmed, with costs


source: Caselaw Access Project

author: Learned, P. J.: Potter, J.

license: Public Domain

text:
    SYLVESTER VIETS, Respondent, v. THE UNION NATIONAL BANK OF TROY, Appellant.
    Bank— action by a depositor against it upon its refusal to pay his check — when the demand made by the payee will not set the statute of limitations running in favor of the bank as against the drawer of the check.

    Where a check, drawn by a depositor upon a bank in which he has deposited money, has been indorsed by the payee, and presented for payment by the indorsee and payment thereof refused, the demand so made will not, in the absence of all proof to show that the indorsee was acting as the agent of the drawer of the check, constitute such a demand as will set the statute of limitations running in favor of the bank as against the depositor. (Pot'eer, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover an unpaid balance of moneys deposited by the plaintiff with the defendant on February 19,1869. The money so deposited belonged to a Mr. John Banker, and it had been paid by the bank to his committee in pursuance of an order made by a county judge and upon a bond of indemnity required by and given to the bank. Two checks drawn upon the bank by the plaintiff on February nineteenth to the order of Mr. Banker were indorsed by the latter to one Ellen M. Houghtaling, who subsequently became his wife. The checks were presented for payment, but payment thereof was refused.

      James Lansing, for the appellant.

      R. A. Parmenter, for the respondent.
   Learned, P. J.:

The plaintiff was a depositor in the defendants’ bank. The defendants have never paid to him, or to anyone authorized by him to receive the money, the amount of the deposit. In the year 1878 the plaintiff made a demand of the money, which was refused, and he brought this action thereafter in the same year to recover the amount.

It is claimed that the action is barred for this reason: On February 19, 1869, the plaintiff gave John Banker two checks, amounting in the aggregate to $4,867. On the -21st or 22d of February, 1869, John Banker indorsed these checks to Ellen M. Houghtaling. On the 6th of March, 1869, one of these checks was pi’esented and payment refused. It does not appear for whom it was presented. On the 28th of August, 1871, the. other was presented and payment refused. John Banker did not present either of them. It does not appear by direct proof that they were protested and notice given to plaintiff. But it does appear that Ellen M. Banker (formerly Houghtaling), after the said presentations of the checks, recovered a judgment on each of them against the plaintiff, and in those judgment-rolls due notice of presentment is averred.

Without going over the evidence as to the so-called injunction-order, and the unauthorized payment made by the defendant upon a bond of indemnity, it seems to me that the question of the statute of limitations is the only one necessary to consider. That question is this: When it appears - that a depositor in a bank has drawn his check thereon to a payee, and that such check-has- been indorsed and presented, and payment refused, do those facts, without any other proof, constitute such a demand that the statute of limitations begins to run in favor of the bank and against the depositor.

The bank is bound to pay to the depositor. It is not bound to pay to anyone else. Therefore the holder of a check cannot sue the bank. The bank may voluntarily pay the payee named in the check, or an indorsee, and such payment will, to that extent, relieve it from liability to the depositor.

The check does not transfer a part of the funds to the payee; otherwise he could sue. The payee may sometimes be, but is not necessarily, the agent of the drawer. If not the agent of the drawer, then the payee, in presenting the check, does not make a demand for the depositor. And no one but the depositor has a right to make a demand of payment.

And just here it seems to me that the distinction lies. A demand of- payment must be made by the person to whom payment is to be made. I do not mean that such person may not employ an agent to make the demand. For on the familiar principle, that what one does by an agent he does himself, such a demand would be the depositor’s demand. But the payee of a check is not necessarily, and is riot ordinarily, the agent of the drawer. Still less is the indorsee of the payee. So that when the indorsee, or even when the payee, presents a check, he does not make a demand of payment for the depositor.

The defendant cites, as showing the contrary, Oddie v. National City Bank (45 N. Y., 735). But an examination of that case will show that it in no way involves the question here presented, viz., whether a refusal to pay a check makes the statute of limitations begin to run between the depositor and the bank.

The depositor should not be affected by a refusal, of which he has not, at the time, knowledge, either personally or through an agent. But the drawer has not necessarily notice of the presenting of a check by the payee at the time when the presentment is made. If it be argued that the check will be protested, and he will receive notice of payment, then does the statute of limitations begin to run from the day on which he receives notice, or from the day of presentment? If the former, then the drawer’s receipt of notice is construed to be a demand of payment; if the latter, then he is affected by a demand of payment of which he is ignorant.

It seems to me that the principle so often settled, that the payee of a check has no right of action against the bank for a refusal to pay, concludes this question.

The defendants have the money of the plaintiff on deposit. It must be held, on the proof, that they have not paid it to him, or to anyone whom he authorized to receive it. The statute ought not to run until the plaintiff has made his own demand (personally or through his agent) and has been refused. To hold that from the day that a check is presented, even by some endorsee of a payee, and payment refused, the statute begins to run in favor of the bank and against the drawer seem to me to be erroneous.

Still another consideration. Suppose a depositor draws a check for a part of the deposit and that check is presented by the indorsee of the payee and payment refused. Now if the depositor can thereupon at once sue the bank; for how much can he sue ? The amount of the check ? Then he can divide up his claim and subject the bank to several actions for one deposit. The total deposit? That has never been demanded.

I think the judgment should be affirmed, with costs.

Bordman, J., concurred.

Potter, J.

(dissenting):

This is an appeal from a judgment in favor of the plaintiff rendered upon the trial of the action before the court. The action was to recover an alleged balance or excess of moneys deposited by plaintiff with defendant’s bank, over moneys withdrawn running through a period of years.

Although this is the form and character of the complaint the contention relates entirely to one deposit of $4,867.83, made February 19, 1869, and checks drawn by plaintiff in respect to that deposit, and the transactions of the parties in relation to that sum. Besides that sum the plaintiff had made no deposit in the defendant’s bank since September, 1868, and had remaining due him from the defendant for balance of deposits and interest, but the sum of twenty-three dollars and fifteen cents, at the close of the year, 1868. The evidence had reference to this deposit of $4,867.83. The answer contained, among other defenses, that this sum of money so deposited by plaintiff, belonged to John Banker, and the same had been paid to his committee under the order of the court and the further answer of the statute of limitations.

There was a good deal of evidence introduced upon the trial in relation to proceedings taken to have said Banker declared of unsound mind, and the appointment of a committee of his estate and the acts of such committee. But in the view taken of the case ultimately and the ground upon which the case was decided by the court below, and in tbe view, I think, the case should be regarded upon the appeal, it will not become necessary to consider the evidence of that character. If the money in the bank had belonged to John Banker, and the defendant could regard him and not the depositor as the owner, yet it had disregarded the wishes of John Banker in respect of it and had in fact paid it out ignoring both John Banker and the plaintiff, and has but the order of the court for the payment in a proceeding in which the plaintiff, towards whom the defendant assumed relations, was not a party.

There is no question that the sum deposited by the plaintiff in the defendant’s bank, in his own name, was the money of John Banker. The plaintiff on the day after depositing the money, gave the said Banker two checks each dated February 19, 1869, one for $1,367 and the other for $3,500, representing the amount of the-deposit. These checks were received by the said Banker for the sum he let the plaintiff have to deposit, and so far as the plaintiff and Banker are concerned, the checks were received by the said Banker-as a full acceptance and satisfaction of all relations between the plaintiff and the said Banker, and if the checks had been paid either to Banker or his order, he would have the money he had parted with to plaintiff.

The money was deposited by plaintiff with the defendant’s bank and the legal relation between plaintiff and defendant by reason of the deposit, was that of debtor and creditor in respect to the amount of money dejjosited. This relation was purely and simply a legal one between the depositor and the depositary. It had no character of trust or element of equity in favor of anyone so far as the bank was concerned, which stood in respect to the deposit as the -simple debtor of the plaintiff. That is the ordinary legal effect of making a deposit. If it had any other character or quality, that quality existed between the plaintiff and Banker, the owner of the money; and as before stated, whatever there was of that nature was between the plaintiff and Banker, and that was fully answered and satisfied by the -giving and accepting the checks for the amount of the deposit, and Banker has never been heard to complain in that direction.

The relation between the plaintiff and defendant was only that of debtor and creditor, with the right of the depositor to demand and the duty of the depositary to make payment at just such times within the hours of business, and in just such sums as it might suit the pleasure or convenience of the plaintiff as depositor. These rights and obligations characterize all ordinary deposits of money in banks. (Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y., 82.) In this case these relations are alleged in the complaint and not denied in the answer. The plaintiff may exercise his right to demand payment in person or by check, or in any other manner consistent with the ordinary modes for the transactions; and in whatever manner he chooses to make the demand, within those limits, it is the duty of the depositary to comply with the demand by making payment to the depositor, or to the person appointed by him to receive payment. (Downes v. Phœnix Bank, 6 Hill, 297; Bank of British N. Am. v. Merchants’ Nat. Bank, 91 N. Y., 111.)

The evidence in the case shows, and the findings of the court below are, that these two checks, given by the plaintiff to the said John Banker, and by him indorsed and transferred to Miss Houghtaling, afterwards Banker’s wife, were duly presented to the bank and payment demanded and refused prior to September, 1869.. Upon the refusal of payment of these checks the plaintiff, the depositor, had a cause of action against his depositary, the defendant. The defendant, by its refusal to pay the checks, had violated the obligation it had assumed to the plaintiff to make payment whenever requested so to do. (46 N. Y., 82, swpra.)

This gave a cause of action to the'plaintiff against the defendant and to him alone as the depositor, but not a cause of action in favor of the holder of the checks. It is not perceived why this does not give a cause of action to a depositor just as often as payment is demanded and refused, and for each sum demanded and refused. From the nature of the relations between depositor and depositary, the latter is to pay the sum demanded and at the time demanded. There is no necessity to wait at all in bringing the action to recover the sum demanded and refused. The depositor could not sue for the whole sum remaining in deposit, if there was a remainder, for the depositor has no cause of action for the whole deposit until payment of it has been demanded and refused. (6 Hill— ; 91 N. Y., supra.)

In the case under consideration, however, the two checks, of which payment was refused, represent this deposit not only, but substantially all the plaintiff had remaining in the defendant’s bank; and they were both drawn and delivered to the holder, and payment thereof demanded and refused at the same time. This demand and refusal was prior to September 1,1869, and so was more than six years before the commencement of the action, which was on the 16th day of May, 1878. The statute was set in motion when the plaintiff had a cause of action against the defendant by his demand and its refusal. Where the statute has begun to run upon a cause of action arising upon demand and refusal, it will not be arrested or effected by a subsequent demand and refusal. (Kelsey v. Griswold, 6 Barb., 436 ; Bruce v. Tilson, 25 N. Y., 196.) It is the right of a party who has given to another a cause of action by a denial of the party’s rights, to have the right determined within the time prescribed by statute for that purpose. But the learned justice who tried this case, would seem to have been quite in harmony with the view thus far expressed, but holds that the- six year’s rule of limitations does not apply to this case, but that the rule prescribed in section 386, Code of. Civil Procedure, is applicable to this case. That section is, that in an action brought to' recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. We think the learned justice erred in the application of this section of the Code. It is identical with the former section of the Revised Statutes and the former Code upon the subject of mutual accounts. It has always been .construed to mean accounts or charges consisting of demands for items or articles chargeable in favor of the one party against the other; hence a mutual account consisting of items properly chargeable in an account upon one side and account of payments of money or property upon the other side, is not within this section. (Peck v. N. Y. & Liv. U. S. M. S. S. Co., 5 Bosw., 236 ; Albro v. Figuera, 60 N Y., 630; Green v. Disbrow, 7 Lans., 381.) Besides, the case does not fall within the language of the section or its design. A depositary can have no demand against the depositor in any just sense. In the nature of the case and from the principles and the relation of depositor and depositary, that section can have no application to this case. No matter how long the deposit has been standing, or frequently or seldom made or drawn against, there can be no cause of action by the depositor against the depositary until there has been a demand and refusal; and it is. the demand and refusal that constitutes the cause of action, and not the state of the balance between drafts and deposits. The remainder of' the deposit is in no wise affected by a demand to pay a portion of the deposits and refusal. The depositor, has only a cause of action for the part of the deposit demanded and refused, and for so-much, if he would protect his right in respect of that portion, he-must bring his action within the six years’ limitation. (Peck v. N. Y. & Liv. S. M., 5 Bos., 226.)

A new trial should be granted, costs to abide event.

Judgment and order affirmed, with costs.


author: Potter, J.:

text:
    JOHN A. REIPER, Respondent, v. WILLIAM H. NICHOLS and CHARLES H. NICHOLS, Appellants.

      Negligence — carelessness in starting a fire — a person is only liable for the immediate and proximate effects of Ms acts.

    On May 29, 1882, sparks and burning cinders escaped, through, the defendant’s, negligence, from the top of a smoke-stack in the defendant’s factory and set fire to the roof of an old unoccupied building situated about 280 feet in a southeasterly direction from, and on the same side of the street with, the smoke-stack. Owing to the lack of proper appliances and to the fact that the doors of the building were looked, the roof of the building could not be reached until the fire had spread across the street to an old barn some 110 feet long and some: fifty feet distant; from this barn it again passed across the street to a saloon and other buildings, and from these to a building owned by the plaintiff which stood near the smoke-stack from which the sparks were emitted.
    In an action by the plaintiff to recover the damages occasioned by the loss of his building:

      Held, that the defendant’s negligence was not the immediate and proximate cause of the burning of the plaintiff’s building, and that he was not liable for the damages occasioned thereby.

      Ryan v. New York Central Raikoad (85 N. Y., 210) followed.
    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 the minutes of the justice before whom the action was tried.

      W. Jrl. Johnson, for the respondent.

      Ii. <& W. J. Welsh, for the appellants.
   Potter, J.:

This is an appeal from a judgment, entered upon the verdict of a jury and from an order denying a motion upon the minutes for a new trial. The facts in this case make it one of unusual occurrence ■and of more than ordinary interest. They are substantially as follows: The defendants are engaged in the manufacture of hubs in a building situated on the northerly side of a street in the village of Hancock, in Delaware county; the machinery of the factory is run by an engine from the steam of a boiler, with a smokestack, some seventy feet high, which were in immediate connection with the factory building. The fuel of the fire producing the steam •consists mainly of the chips and the shavings from turning the hubs.' Dn the 29th day of May, 1882, the steam was up and the machinery in operation. "When this was the case it was not an uncommon occurrence for sparks to escape from the smoke-stack. .At about five o’clock upon the afternoon of this day, the soot in the smoke-stack took fire and an unusual amount of sparks and burning cinders proceeded from the top of the stack and fell down at various points. The wind was blowing strongly from the north-west.

The attention of the defendants and of several citizens was called to the danger of the situation, and some of them remonstrated with the defendants for allowing the sparks and cinders to escape in such .a manner and advised the defendants to shut off the draft to prevent it. The defendants declined to do so as it was near the time for shutting off the steam and stopping the machinery for the day.

At or near this time an old unoccupied building, situated in a general south-easterly direction from the smoke-stack and about two hundred and eighty-two feet distant therefrom, was seen to be •on fire. The fire when first seen was in the roof or in some boards between the roof and the upper third floor of the building. There were no means at hand to get upon the roof of the building, and the place of fire could not be reached and no near approach to it could be immediately effected through the inside of the building owing to the doors being fastened and other obstructions. The fire spread from this building to another near by and from the latter to a barn upon the opposite side of the street and some fifty feet distant, and from the barn, which was an old building one hundred and ten feet long, the fire passed across the street again, to the side on which stood the first building fired, to a saloon and other buildings and to-the plaintiff’s shop, the subject of this action, thus crossing the line taken by the spark which, escaping from the smoke-stack, fired the first building beyond — assuming, as found by the jury, that a spark from the defendants’ smoke-pipe set the first fire — and returning to the plaintiff’s, which stands a little to the west of the hub shop whence the original sparks proceeded.

At the close of the plaintiff’s case, and again at the close of the whole case, the defendant moved for a nonsuit upon the ground that the loss sustained by the plaintiff was not the direct result of the negligence of the plaintiff, assuming that the defendants had been guilty of negligence. The same questions were raised upon the requests to charge. Exceptions were properly taken to these refusals to nonsuit and to charge, so that there is presented for decision in the first instance this question, whether a person through whose negligence fire is communicated to and consumes a building, and the building thus fired in process of burning sets on fire the building of another nearer the place where the fire originated, or the place of emitting the spark, and the latter building in burning sets on fire the building of another nearer still to the place of the original source and practically alongside of it, is liable to the owner for the loss by fire of the last named building.

The learned justice in trying the ease under consideration refused to nonsuit upon this state of facts, and left or designed to leave the question to the jury whether or not the negligence of the defendants, if the jury should find the defendants guilty of negligence, was the natural and ¡proximate cause of burning plaintiff’s building. It is contended that this ruling, leaving the determination of this question, unler the circumstances of this case, to the jury, was error; that the court should have disposed of the question as one of law and granted the nonsuit. The cases mainly relied upon by the defendant in support of this contention are Ryan v. The New York Central Rail road (35 N. Y., 210); Pennsylvania Railroad v. Kerr (62 Penn., 553; S. C., 1 Am. R., 431), and Hoag v. Lake Shore, etc., Railroad Company (85 Penn., 293; S. C., 27 Am. R. 653.) These cases recognize and apply the principle which is involved in this class of cases, viz.: Whether the cause and effect are natural and proximate.

In the case of Ryan v. New York Central (supra), the court assumed upon a given state of facts to decide whether the cause was natural and proximate, and there does not seem from the report of the •caseto have been any objection taken that the case should have been given to the jury. In the case of Ryan v. New York Central Railroad (supra) the facts were that the defendant by the careless use of its locomotive had set fire to its own woodshed, which communicated fire by heat and sparks to the plaintiff’s house in the city of Syracuse, •one hundred and thirty feet from the woodshed. The court held the cause too remote from the consequence and nonsuited the plaintiff.

In the case of Pennyslvania Railroad v. Kerr, the defendant, through a defective locomotive or carelessness, had fired its own warehouse, which, in burning, set fire to the plaintiff’s hotel, thirty-nine feet distant from the warehouse, for which plaintiff brought an •action and recovered a verdict, but the court set aside the verdict for the reason that the cause was not proximate to the effect.

In the case of Hoag v. Lake Shore Railroad (supra) the facts were, that owing to a sudden rain a portion of an embankment was ■detached and slid down upon the track. An oil train of defendant’s -coming along a few minutes after the slide was thrown from the track by this detached earth upon the track, and the oil cars thrown off •and the oil spilled and set on fire, and thus running down into a creek below swollen by the rain, was carried by the current several hundred feet to the buildings of plaintiff which were thereby set on fire and ■consumed. Upon that state of facts the court decided as a matter of law that the cause was too remote from its consequence and refused to sumbit the question to the jury. While it is true that actions for negligence from their nature and character involving, as they necessarily must, the proof and consideration of many acts of the parties and circumstances of the situation to determine the negligence of both plaintiff and defendant; of the defendant as a cause of action and its connection with consequences, and of plaintiff as a defense •or answer to defendants’ negligence, are largely questions of fact for a jury to pass upon; yet upon a clear, undisputed, or conceded state of facts it becomes the right and duty of the court to dispose of actions of negligence in the same manner as the court should dispose of any other class of actions.

In the examination of the numerous cases in the courts of .several States of the Union, England and the court of the United States, a marked difference in the rulings is found to exist. All of them agree in this, that whether the effect is the natural and proximate sequence of a cause is to be determined by a jury, but the States of New York and Pennsylvania hold that a jury should not be allowed to find that a cause is proximate beyond the first effect; •that is, where the building which is fired as a first effect, itself fires ■the seeond, and the second the third building, and so on to an indefinite extent.

The decision of the courts in all the other States, so far as I have been able to examine their reports of cases, hold that the ■question of natural and proximate cause and effect is not only to be left to the jury to determine, but that the liability extends just as far as the cause can be traced in effects which - follow the prime •cause without some intervening agency, either active or passive, ■changing, diverting, modifying or affecting in some degree the •operation of the prime cause. (Delaware, Lack. and W. R. R. v. Salmon, 10 Vroom. [N. J.], 299; S. C., 23 Am. R., 214; Fent v. Toledo and W. R. R., 59 Ill., 349; S. C., 14 Am. P., 13; Hart v. Western Ry., 13 Metc., 99 ; Cleaveland v. Grand Trunk Ry., 42 Vt., 449 ; Kellogg v. The Chic. and N. W. Ry. Co., 26 Wis., 223; S. C., 7 Am. R., 69 ; Milwaukee and St. Paul R. R. v. Kellogg 4, Otto, 469; Sneesy v. Lan. and Y. R. R., L. R., 9 Q. B., 263.)

These cases hold that a person guilty of negligence is to be held responsible for all the consequences flowing naturally and proximately from the negligent cause, and that diversity of ownership of the buildings burnt, or the lands traversed by the fire, ■or mere distance of locality, or the period of time between the burning of the buildings, do not necessarily or at all relieve from liability until the primal cause ceases to operate, or the chain of natural .and proximate cause and effect have been interfered with by some agency, or neglect or fault of some other person either by his ■conduct or the condition of his property.

The case under consideration was tried and submitted to the jury upon this theory of the law of defendant’s liability. Tested by the case of Ryan v. New York Central Railroad (supra), this mode was erroneous. The plaintiff should have been nonsuited according to the authority of that case. I do not find that that case has been overruled. It was the subject of notice and comment by Judge Folglr in Webb v. Rome, Watertown and Ogdensburgh Railroad (49 N. Y. 420).

He sought to distinguish the latter case from the Ryan case, thus indirectly approving the decision in the latter case. He sustained the verdict in the Webb case upon the ground that the defendant in that case was guilty of negligence in the use and condition of its locomotive in dropping fire upon its own track which set fire to a tie upon the railroad, thence to an old tie lying by the side of the rail, and that set fire to dry and combustible matter which the defendant had allowed to accumulate along its track and thence to defendant’s fence and to plaintiff’s wood lot, which the report of the case shows lay immediately adjacent to the defendant’s premises, which were all together in a dange.rous condition, and were regarded by the court as constituting the cause of action. The two cases do not impinge upon each other, or they were not so regarded by the Court of Appeals. Hence I must conclude that the case under consideration, tested by the standard set up by the case of Ryan, required that the plaintiff should have been non-suited. But if this case, as presented to the jury, was not in conflict with the Ryan case, I think the learned justice was in error in carrying out the theory upon which the case was tried by him. The case was tried upon the theory that the cause might be natural and proximate, though the first fire originated by the emission of a spark 208 feet away, and then the first building set fire to a second building which was fifty or more feet away, and upon the opposite side of the street, and that to another nearer the origin of the fire, and thence passing across the street, about sixty feet, to the plaintiff’s building, near the place at or where the fire originated. If one were to follow with a pencil the line of the spark from the smoke-stack to the first building burned, to the plaintiff’s building, he will describe very nearly a figure “ 8.”

Now, two results follow from this and each of them fatal to plaintiffs recovery. There must have been an intervening cause, such as a change in the direction of the wind, in sparks falling in the first instance upon a building, or in a subsequent course back to plaintiffs building upon one or more buildings easily ignitable or surrounded by matter that was readily set on fire, and this communicated to the buildings burned.

The learned judge who tried the case submitted the change of wind as one instance of an intervening cause which would render the spark not the proximate cause of the burning of the successive buildings. In many of the cases above referred to and the text-writers, and it is substantially laid down in Wharton on Negligence (§ 150), that where one of the intermediate buildings has been negligently built of materials easily ignited, or is surrounded by matter easily set on fire by sparks and heat from burning buildings, or where the ordinary means of putting out fire are not obtainable, or there are obstacles in the way of applying water or the ordinary means of extinguishing or preventing the spread of the fire, in such cases and under those conditions the causal connection ceases and the original cause is no longer the proximate cause. Wharton further says: That a person whose negligence may have been one of the antecedents or conditions of an event, is relieved judicially from liability if such negligeuce is applied to the particular event by the intervening negligence or malice of a third party.

I think this a sensible and just rule, and I am inclined to think that it would devolve upon the plaintiff to show, to sustain his cause of action, where he would hold the defendant liable beyond the first building burned in the series, that the negligent cause continued as the natural and proximate cause of the burning of the buildings for which he sought a recovery. It seems that this proof is essential, that the original cause continued to be the natural and proximate cause of the burning of which plaintiff complains. This is but applying the same rule of proof to the owner of the second or third building burned, as is applicable to the owner of the first building.

I think the plaintiff failed to make this essential proof; on the contrary I think the proof quite clear, if not uncontradicte'd, that the fii’st building burned was an old and combustible building; that it was unoccupied partially, if not wholly; there was no ladder or other means of applying water to the place where it was first seen upon the roof, and when it was but a foot or two in extent, and by reason of the doors being fastened, and the internal structure and condition of the house, the fire was practically unapproachable. The condition of the barn to which the fire passed the first time it crossed the street, was little if any better. There was no public means provided for extinguishing the fire, and there was a lamentable lack of private means or a failure to use them. Now the defendants are not responsible for this neglectful condition of things. Here was manifestly the intervening neglect of other parties except for which the fire might have been suppressed or stayed. Now another result must follow here : The rule we have been considering is as often called the rule of experience and observation, and parties guilty of negligence are held to the rule that they must answer for all damages which men of ordinary intelligence and -prudence may reasonably anticipate. It is the rule of probabilities as to the consequences which may ensue from an act of negligence.

This is but another mode of stating the rule of natural and proximate cause and consequence. Now if the defendants are liable because as men of ordinary prudence they would have foreseen the burning of each building in succession,' one taking five from the other, in the order of cause and effect, why was not the plaintiff guilty of contributory negligence in not removing his goods from the expected cause of the fire ? He was upon the ground and saw, as well as the defendants, one building set fire and burn another in the series. If the defendants are liable because they, as prudent men, must have known that the buildings, one after another, including the plaintiff’s, would probably burn, the plaintiff must be held to know and expect just what the defendants are held to know and expect.

Now it was charged by the judge in this case, and is held in several of the cases hereinbefore referred to, that if the plaintiff unnecessarily neglects to remove his goods from the danger of the fire, he is guilty of contributory negligence and cannot recover. But we are inclined to think that if the case had been tried upon the theory which was not in conflict with, at least, the authorities of this State, the judge fell into an error by which the jury got a wrong impression, and it must have had a large influence in producing their verdict.

Now as we have seen there are and perhaps were, in this case, one or more intervening causes that broke the causal chain. The judge properly charged them in reference to one intervening cause, viz., a change in the direction of the wind. The judge was requested to charge that if the jury find that the fire did escape through the defendant’s carelessness, and then passed in a south-easterly direction to the Read building, and was then caused to take a westerly direction forty feet to the old structure or barn called the Read hotel barn, and the combustible material in and about it, and by this was communicated to the plaintiff’s building, then this is an independent cause intervening between the wrong and the injury, and the plaintiff cannot recover. This request contains in pretty apt words, one of the intervening causes that break the causal chain.

The court refused to dharge this proposition, and declined to charge differently from what he had charged. Now he had not charged in reference to an intervening cause of this character at all. But he charged that intervening buildings which are successively burned, were not intervening causes, and then asks “ if there was any other or different fire from that, that the defendants, by their negligence, originated % Thai is the question.” Then he proceeds to illustrate his idea by supposing that some intervening building had been blown up to stay the course of the fire, and the fire thus created had burned the plaintiff’s building, the defendants would not have been liable. Then he stated that would have been an intervening cause, and he asks if there was anything of that kind that intervened between the fire emitted from the defendant’s smokestack and the defendant’s burning building ?

I have but little doubt that the jury were led to believe from the charge, as given by the court, that another independent fire only, or perhaps the same fire, with a change of wind, were the only intervening causes that there were or could possibly be in this case to prevent the liability of these defendants. As we have before seen, there doubtless were, or at least might have been, other intervening causes besides wind and another fire, and the jury should have had their attention called to the possible existence of other intervening causes.

I tbiulr a new trial should be granted for those errors in the charge. Some questions were made in regard to the admissibility of evidence. If we are right in any of the views we have taken, a new trial must be granted, and it is not worth while to consider .those minor questions.

Learned, P. J., and Boardman, J., concurred, on the authority of Ryan v. New Yorh Central Railroad Company (35 N. Y., 210).

Judgment and order reversed, new trial granted, costs to abide event.


author: Learned, P. J.: Potter. J.

text:
    CALVIN SURDAM and Others, as Commissioners of Highways of the Town of Hoosick, in the County of Rensselaer, Appellants, v. SOLOMON FULLER, as Commissioner of Highways of the Town of White Creek, in the County of Washington, Respondent. SAME v. THOMAS F. CORNELL, as Commissioner of Highways of the Town of Cambridge, in the County of Washington, Respondent.

      Repair of bridges — liability of adjoining towns for the cost thereof — right of a commissioner of highways of one town to maintain an action to enforce such liability against the commissioner of another town — Rule that voluntary payments cannot be recovered — applicability of it to-payments made by a public officer — whenpa/rties are not concluded by a settlement of their accounts.

    The southerly end of a public bridge crossing the Hoosick river is in the town of Hoosick, while the northerly end thereof is partly in the town of White Greek and partly in the town of Cambridge. In 1879 the commissioners of highways of all three towns met and examined the bridge, and agreed that it must and should be repaired. There was no agreement as to the proportion of the expense which each town should bear, but it was supposed that, legally, one-half thereof should be borne by the town of Hoosick and one-quarter thereof by each of the other towns. The sum of $2,076.81 was expended in making the repairs; the commissioners of the different towns having expended that amount in severally purchasing materials and employing laborers. The coñimissioners of the town of Hoosick paid the sum of $1,026.28; the commissioners of the town of White Creek, $550.78, and those of Cambridge, $499.75.
    The commissioners of the town of Hoosick, claiming that the expense should have been divided equally between the three towns, brought' this action against the commissioners of one of the other towns to recover its share of the overpayment made hy the town of Hoosick.

      jHeld, that the rule that money voluntarily paid, with full knowledge of the facts, cannot he recovered back, did not prevent the plaintiff from maintaining this action. (Potter, J., dissenting.)

      {¿lime, as to whether this rule applies to payments made by a public officer out of public funds.
    After the repairs were nearly completed the commissioners met to see how they stood, and after looking over the accounts Puller, the defendant, told the plaintiff to pay him eighteen dollars and thirty cents and that he, Puller, would pay two men in Washington county, and that the plaintiff should pay the men in Rensselaer county, and that would make it all right. This was done, and the plaintiff took the defendant’s receipt for the money so paid to him.

      Held, that this was not such a final settlement and accounting as estopped the plaintiff from maintaining this action. (Potter, J., dissenting.)
    Chapter 482 of 1875, authorizing the boards of supervisors of the several counties of the State to apportion, as such board might deem equitable, the expense of the construction of certain public bridges, and to provide for the care, preservation and reparation thereof, is permissive only; and, in the absence of all action thereunder by the board of supervisors, the old rule apportioning the cost of repairing bridges among the adjoining towns, established by chapter 225 of 1841, as amended by chapter 383 of 1857, still continues in force.
    Sections 2 and 3 of the act of 1841, as amended by the act of 1857, conferred upon the plaintiff, as commissioner of the town of Hoosick, power to maintain this action against the defendant, as commissioner of the town of White Creek, to recover the share of the cost of making the said repairs, which was properly chargeable upon the latter town. (Potter, J., dissenting.)
    Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.

      P. A. Parm,enter, for tbe appellants.

      P. M. Westfall, for the respondents.
   Learned, P. J.:

There is a bridge across tbe Hoosick river, crossed by a public highway as a part thereof. The southerly end of the bridge and the highway on the south side of the river are wholly within the town of Hoosick. The northerly end of the bridge and the highway on the northerly side of the river are partly within the town of White Creek and partly within the town of Cambridge; the dividing line passing in or about the center of the bridge.

In 1879 the bridge was out of repairs, and the commissioners of highways of all the towns met and examined it, and concurred that the bridge must be repaired and determined to proceed. There was no agreement as to the proportion of the expense which should be borne by each. But they all supposed that, legally, the town of Hoosiclc was bound to pay half the expense and the towns of Cambridge and White Creek each one-quarter.

In making these repairs the total amount expended was $2,076.81; of which the commissioners of highways for the town of Hoosick paid $1,026.28; the commissioners for White Creek, $550.78; the commissioners for Cambridge, $499.75.

It appears that the commissioners purchased materials from different persons and employed laborers; some of the bills were paid by one commissioner and some by another.

It is now claimed by the town of Hoosick that the expense should be borne equally by the three towns. This action is brought against the commissioner of White Creek to recover the ratable share of the expense. The learned referee held that the money was paid voluntarily, with a full knowledge of the facts, and therefore could not be recovered back. In other respects he seems to have decided with the plaintiff.

We do not think it necessary to inquire whether this general principle that money voluntarily paid cannot be recovered back applies to the case of public officers who pay out the money of the State, or of a county or of a town. As the power of such officers is generally limited by statute, the payment of money contrary to statute might be a misappropriation by which the recipient would get no rights. Bor instance, if a county treasurer should pay jnoney on an illegal claim, we doubt whether the payee could resist a recovery upon the ground that the treasurer paid voluntarily and with knowledge of the facts. (People ex rel. Merritt v. Lawrence, 6 Hill, 244.) The. case of Supervisors v. Briggs (2 Denio, 26) involved other principles.

But it is not necessary to examine that 'point, to which the learned referee briefly alludes, because this is not a case where the principle applies. The payments were to the workmen and to those who furnished materials. Admitting that those payments could not be recovered back, that admission does not decide the question how much these three boards should contribute as between themselves, The principle referred to is that where one person makes a claim against another, and the latter, with knowledge of the facts, pays it, that payment cannot be recovered back. (See 2 Alb. Law Jour., 405, and subsequent articles.) But in the present case the three boards were engaged in a common enterprise. It is evident that it was necessary to build the bridge as a whole. It would be impossible for each board to build a third of it, or any other portion, separately. If one board paid more than its share to laborers or for materials, that was not a payment to the other board, but, as it were, money paid and advanced to its use. If the defendant’s views on this point are correct, then in case one board had paid the whole expense to the laborers and for the materials there would have been no right to be reimbursed for the share properly due from the other boards. We feel quite confident that this principle of voluntary payment does not apply to this case.

Nor is it necessary to say that this was a joint enterprise. It is enough that it was one which necessarily was to be done by united action, and, as the referee finds, was so done; and it was one as to which each board was bound to pay a certain proportion.

We pass then to consider whether the judgment can be sustained upon other grounds.

The referee finds as a matter of fact that when the repairs were completed the commissioners accounted together and had a full and final settlement on the basis aforesaid, viz.: Hoosick paying one-half and each of the other towns one-quarter. And it is insisted that this is conclusive.

It appears that after the repairs had been nearly completed the. commissioners met to see how they stood, and after looking at the. matter Mr. Fuller, the defendant, told the plaintiff to pay him eighteen dollars and thirty cents, and that Mr. Fuller would pay two men in Washington county, and the plaintiff pay the men in .Rensselaer county, and that would make it all right. Plaintiff did so and took his receipt. It appears also that after that time there was another figuring of the matter which brought out a result slightly different.

Now this, at the most, can be taken only for an agreement as to how much each of the three boards had severally paid; and as to that point no dispute arises. It is admitted that they had severally paid to the workmen and to the laborers the amounts they found and agreed upon. Suppose that one of these boards had paid the whole; and that thereupon the three boards had met and ascertained that fact and had said that this was all right; would it be claimed that such action made an account stated so as to deprive the others of their rights ? An account stated is in the nature of an admission of facts, and- it is not the facts which are in dispute in this present case. There is nothing in the way • of estoppel; because there has been no action by the defendant on the strength of the alleged settlement. And we think that there was not such a settlement of a disputed matter as prevents the plaintiffs from asserting any rights they may have.

That the three boards of commissioners, representing their respective towns, should have contributed equally to the repairs, is settled, we suppose, by Lapham v. Rice (55 N. Y., 472); and Beckwith v. Whalen (65 id., 327; S. C., 70 id., 434); unless, as is claimed by the defendant, the law has been changed by chapter 482, Laws of 1875.

The act chapter 225, Laws 1841, was “ an act relating to the joint liability of commissioners of highways.” The act chapter 383, Laws 1857, was an amendatory act simply. The act of 1875, on which the defendant relies, is the general act to confer powers of local legislation on boards of supervisors. Section 1 gives these boards authority to make and administer laws and regulations as follows : Subdivision 4 is “ to apportion, as such board may deem equitable, the expenses of the construction of any public bridge, * * and in all cases such counties shall each pay not less than one-sixth. Section 5 is to provide for the case, etc., of a bridge crossing a stream which forms the dividing line of counties and the maintenance of which is, by law, a just charge on such counties or on the towns in which the bridge may be situated, and to apportion the charges, etc.

And here we may notice that chapter 346, Laws 1883, was passed after this bridge was repaired, and this action commenced, and of course does not apply.

Chapter 77, Laws of 1878, amended subdivision 4 above cited, striking out the requirement that the county must pay one-sixth.

Taking then the law as is stated in 1879, when this work was done, we have an authority in the board of supervisors to make a certain apportionment of the expense of constructing such a bridge.. Which board of supervisors would have authority is not quite clear. And we have the further authority in certain cases, under subdivision 5, to apportion the charges for repairs. But suppose that the supervisors have not, either by general law, or by a special resolution (if that be proper), made any apportionment; is there then no law on the subject? We think that, at least in the absence of any action by the supervisors, the old law remains.' The act is permissive and authorizes the supervisors to do certain things. If they do no choose to legislate, the old rules are not changed. This is-especially true when the old law (in this case the Laws of 1841 and 1857 above cited) was a carefully prepared scheme for a special, purpose.

The remaining question is whether this action can be maintained by the commissioners of highways of one town against the commissioners of highways of the other. The defendant insists that the authority given by sections 2 and 3 of the act of 1841, as amended by the act of 1857, to bring an action, applies only to the case of a neglect or refusal to join in making the repairs. This act begins by declaring that the bridge is to be maintained at joint expense without reference to town lines. It then provides that if the commissioners of one town refuse to act the others may enter into joint contracts; “ and said commissioners (of said towns so liable) may be proceeded against jointly for any neglect of dirty in reference to such bridges.” It further provides that if the commissioners of highways of either such towns, after reasonable notice in writing from the commissioners of highways of any other of such towns, shall neglect or refuse to build or repair and such bridge, it shall be lawful for “ the commissioners so giving such notice to make or repair such bridges, and tíren to maintain a suit at law in their official capacity against said commissioners so neglecting or refusing to join in such making or reparing.” In such action there is to be a recovery for the amount which the town would be liable, to contribute.

Now the defendant insists that this provision of the statute is to be limited' to a case where the board of commissioners refuses to consent to build or refuses to build; that in this case the defendant did not refuse. But that is a very narrow construction. Suppose a board of commissioners say, we consent to build, and then do nothing. Can they thus escape liability ? The statute says that they must not only consent, but within a reasonable time thereafter must “ do the same that is, must repair.

Now the object of the notice is to give the commissioners an opportunity to act. In the present case they had actual notice and they met. Then the question must be whether their failure to pay their proper share is a neglect within a reasonable time to repair. The statute contemplates something which is to be done within a reasonable time after consent. Has the defendant then repaired the bridge as he was bound to do ? Suppose he had bought one stick of timber and put it in the bridge, could he say, I have not refused to repair ? This would be absurd. He is to do that which the law imposes on him, viz., (as we have seen) in this case, one-third. And the object of the statute is to enable the commissioners who do the work to recover the ratable portion of the commissioners who do not. To the extent to which the commissioner has not paid his proper share, he has neglected to join in the repair. This is the reasonable, and we think the proper construction of the statute; and it coincides with the view taken in Lapham v. Rice (ut supra).

The defendant insists that the action should have been brought by the supervisor of Hoosick. That argument depends on the point just discussed. If we are correct in thinking that an action, under the circumstances of this case, is authorized by the statute above cited, then the defendant is wrong on this last position, because the statutes expressly authorize an action in this form.

The judgment should be reversed, new trial granted, referee discharged, costs to abide event.

Same v. Cornell, as Commissioner, etc.

This case is similar to the preceding, and is disposed of in the same manner.

Potter. J.

(dissenting):

I have examined with some degree of care the report of the learned referee in the above entitled cases, and the points and argument of counsel, upon the respective sides, of the questions involved in the appeals from the judgments entered upon the referees report, and I am constrained to differ from the opinion of my associates. It is proper to state the grounds of my dissent.

For a more complete understanding of the questions involved in these cases, perhaps it should be stated that the plaintiffs’ who were at the time of making of the repairs to the bridge commissioners of highways of the town of Hoosick, in which is located the south end of the bridge, .and the defendants, who were respectively commissioners of highways of the town of White Creek and Cambridge, in which is located the north end of the bridge, met at this bridge to examine it and determine upon its repairs. They determined that repairs were necessary and that they would proceed to make such repairs; that the said bridge had been several times prior to this' repaired by the commissioners of these towns, who had paid for such repairs without objection or dissent in the proportion of one-half by the town of Hoosick and one-fourth each by the towns of White Creek and Cambridge, and that the said commissioners on the occasion o.f this meeting to consider the repairs, and throughout the making of the repairs, understood and supposed that the said towns were legally liable to pay for the repairs made in that proportion and intended to make said repairs and to pay for the same in that proportion. That all the said commissioners were engaged and participated in making the said repairs, by buying and paying for the material and by hiring and paying for the labor employed in making the said repairs.' Acting upon this theory, no doubt, it was found when the parties met to adjust and settle the-expense, after the repairs had been completed, that the Hoosick commissioner had paid out ($1,026.28) ten hundred and twenty-six dollars and twenty-eight cents, which lacked only twelve dollars and fifteen cents of one-half of the total expenditure, viz., $2,076.81; that there only then remained to be paid a few small bfi’s to laborers in White Creek and Hoosick, and the defendant Fuller said to plaintiffs, after it was ascertained just how much had been paid as above stated, “you give me eighteen dollars and thirty cents and I will give you a receipt for it and I will pay my men and you pay these men down here and that will square us all up,” and again “ that will make us even,” and this result was assented to, and the referee finds there was a fullisettlement of the expense of the repairs upon that basis. The referee has found that all these payments of expenses were voluntarily made by the plaintiff and with a full knowledge of the facts and the evidence is substantially undisputed upon which that finding is predicated. The rule .is well established that payments voluntarily made without fraud and with a full knowledge of all the facts cannot be recovered back. The application of this rule to individual dealings is unquestionable. (Silliman v. Wing, 7 Hill, 159; Mowatt v. Wright, 1 Wend., 355.)

Is it not just as applicable to corporations and to agents and trustees acting in behalf of others. This rule was held to apply and to bind a guardian for infants, who had made payments in gold when at a premium upon a demand thereof, when a payment in currency would have satisfied the demand. (Flower v. Lance, 59 N Y., 603.) The same rule was applied to a corporation, one of whose officers, the treasurer, had paid an illegal tax on demand. (N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308.) The case, Supervisors of Onondaga v. Briggs (2 Denio, 26), I think, very clearly and unmistakably involved this pi’inciple, and Judge Bronson says, at page 39, “ this” and another ground is each a complete answer to an action to recover back money.

That was a case were the board of supervisors of the -county of Onondaga sued Briggs, who had been a district attorney of the county, to recover back moneys which the board of supervisors had allowed to him for services not rendered and of which the board had full knowledge when it made the payment. It was in that case' distinctly held the board could not recover it back for that reason.

The rights and conduct of the State and municipal corporations are to be determined and disposed of in the same manner as the rights and conduct of individuals in respect to business matters. (People v. Stephens, 71 N. Y., 529, and cases ■cited; Curnen v. The Mayor, 79 N. Y., 511) This would seem to be a very clear ■ and marked case of an adjustment and settlement of the accounts and payments with a full knowledge of all the facts in relation to them by all the parties concerned. . There was no suggestion or pretense at the time of the settlement, when the demand of payment was made, when the action was commenced, when it was tried, or at any time whatever, that each of the parties was not conversant with every fact and transaction throughout the entire business. By this payment of the eighteen dollars and thirty cents ($18.30), and the remark of defendant Fuller accompanying it, it was unmistakably meant and intended that that sum will pay the Hoosick half of the whole expense and the one quarter that White Creek and Cambridge were respectively to pay. It could not have meant anything else. It could not mean that would pay off all liabilities, for if it had meant liability and the plaintiff had already paid much more than one-tliird which is conceded, the plaintiff would not in addition have given the defendant eighteen dollars and thirty cents, and make the sums paid still more disproportionate and have increased the defendants’’ liability to the plaintiff by the sum of eighteen dollars and thirty cents. There can be no question that this was in fact, and was-intended to be, a full settlement of the payments and accounts in relation to the repairing the bridge between the parties. Here then was an account stated and settled and it is conclusive upon the parties unless impeached for fraud or mistake. (Lockwood v. Thorne, 1 Kern., 170; Chubbuck v. Vernam, 42 N. Y., 432; Johnson v. Hartshorne, 52 id., 178).

The defendant makes the further point that this court should not grant a new trial if it should not affirm the decision of the referee, for the reason that the plaintiff cannot maintain the action and must therefore ultimately fail. My associates hold that the action of the plaintiff is maintainable. The action is brought by the plaintiffs as commissioners of highways of the town of Hoosick, against the defendant as commissioner of highways of the town of White Creek. As we have seen, the action is brought to recover the difference between one-fourth and one-third of the moneys expended in repairing the bridge in question, which difference was paid by the plaintiffs.

This bridge was repaired by the commissioners of the three towns, after consulting together as to the necessity of the repairs and acting in concert in hiring labor and purchasing material; the same were paid for, sometimes by one and sometimes by another commissioner, but all acting upon the supposition that one-half of the whole expense was due from the town of Hoosick and one-fourth each from the towns of White Creek and Cambridge, and when the repairs were completed the commissioners accounted together and paid for tlie repairs in this proportion. Neither of the commissioners of the towns of "White Creek or of Cambridge, had been furnished with funds to repair the bridge. Can this action be maintained by the plaintiffs as commissioners, to recover of the defendant as commissioner, the difference between one-fourth paid by the defendant and one-third which was paid by the plaintiff towards the repairs? ■ While therefore the cause of action is in the nature of an action to recover for moneys loaned or advanced by the plaintiff to the defendant in repairing a bridge by the commissioners of three towns equally bound to furnish the money to repair the same, yet it lacks this element of such cause of' action, viz., there was no agreement, express or implied, to loan or borrow or to repay, or .any expectation or intention to repay the money sought to be recovered.

The action being brought by a public officer against a public officer, we must find in the statute creating those officers and defin-/ ing their powers and duties as such officers, the authority for its maintenance. The statute upon this subject will be found in Revised Statutes,' chapter 16, title 1, of part 1 (1 R. S., 501 et seq.), “ on highways, bridges and towns,” and the various acts of the legislature subsequently passed amending and adding to those provisions. The principal amendatory acts will be found in chapter 225 of the Laws of 1841 ; chapters 383 and ■639 of the Laws of 1857; chapter 103, Laws of 1858 ; chapter 442 of the Laws of 1865; chapter 474 of the Laws of 1875 ; and ■chapter 700 of the Laws of 1881. In the reading of these various provisions, with such care as I have been able to bestow, I do not perceive any warrant or authority for the maintenance of this action.

Under the act of 1841, as amended by chapter 383 of the Laws of 1857, where two or more commissioners are liable to build and maintain bridges, the same are to be maintained at the joint expense of the said towns. By section 3 of the last mentioned act, if the commissioners of any one of the said towns, after notice in writing from the commissioners of any other of such towns, shall not within twenty days give their consent in writing to build or repair such bridge, and shall not within a reasonable time thereafter do the same, the commissioners so giving notice to make the said repairs may maintain a suit at law in their official capacity to recover the sum the delinquent commissioners ought to have paid towards the repairs. There is no suggestion or pretense that there was any such notice in writing given, or any refusal upon the part of the defendant to make the repairs. On the contrary he voluntarily joined the plaintiffs and acted with them in making the repairs.

Nor can anything be found in chapter 639 of the Laws of 1857, to warrant this action, nor in chapter 103 of the Law's of 1858, nor in chapter M2 of the Laws of 1865. The former of these acts provides for an application to the court for an order compelling ■each town liable for repairs, to pay its proportion of the repairs paid by the other towns and the latter statutes only contain provisions for raising the funds for repairs, through the action of the town auditors, where there is no dispute between the towns as to their liability.

Nor is there anything in chapter 482 of the Laws of 1875, or •chapter 257 of the Laws of 1876, or in chapter 77 of the Laws of 1878, or in chapter 439 of the Laws of 1881, applicable to the ■question of the right of the plaintiff to maintain this action. Those ■statutes relate to the powers of the boards of supervisors to determine how much the county and the towns shall contribute towards the repairs of bridges. There is nothing in this case showing that the board of supervisors of either Rensselaer or Washington coun ties, ever took any action in relation to the proportion of the ■expenses of their towns towards the repair of this bridge. In that -case the Laws of 1841, as amended by the Laws of 1857, would •control the proportions paid by the towns, the commissioners of which have made the repairs in question. It is only the act of 1857 which has any provision fixing the proportion to be paid by ■each town and authorizing the commissioners of one town to bring .an action against the commissioners of another town to recover the proportion to be paid by it in the condition provided for by that act, but which condition, as we have seen, does not exist in this case.

I do not see how the facts of this case can be moulded or shaped so as to make or to constitute the condition of a refusal after notice in writing to repair and the making of the repairs by the plaintiffs after such refusal by defendant.

It would seem to me to be a manifest violence to the language of "the statute, and a palpable perversion of the facts of this case, to construct them into a notice in writing to make the repairs, and a refusal to make them, when no notice in writing was given, and there was, in fact, no refusal to make the repairs. But, on the contrary, the defendant actually joined the plaintiff and co-operated with him in making the repairs from the beginning to the end thereof, and paid his full proportion for all the labor and material, and to the entire satisfaction of the plaintiff, as the law and facts were understood by all parties.

If I am correct that there is no statute especially authorizing the plaintiff to maintain this action, the inquiry remains, whether the action can be maintained under the general duties and powers of the parties to this action as commissioners of highways. The general rule doubtless is that all public officers have capacity to sue commensurate with their public duties and trusts. (Loonie v. Hughes, 26 N. Y., 516.) That rule relates to the capacity of the plaintiff to sue. But the question in this case is two-fold and involves the consideration of another element, and that is the capacity 'of the defendants, as commissioners, to be sued upon this cause of action. 'Sections 1926 and 1927 of the Code of Civil Procedure, which are substantially a re-enactment of former statutes, provide when officers may sue and be sued as such. They may sue upon a contract lawfully made with those officers; to enforce a liability created or a duty enjoined by law upon those officers; to recover a penalty or a forfeiture given to those officers, or to recover damages for an injury to the property or rights of those officers. ,

The facts in this case do not show any contract made by the plaintiffs as commissioners, with the defendant as commissioner. If any contact was made, it must have been that the plaintiffs, as commissioners, would lend or advance the moneys or a part of the money which the defendant should have furnished. If such a contract was-made it was unlawful, for the plaintiffs, as commissioners, had no-legal right to lend the money intrusted to them for building the bridge, and the defendant had no right to borrow money. (Van Alstyne v. Freday, 41 N. Y., 177.) The law created no liability nor-enjoined any duty upon the plaintiffs to furnish more than onethir 1 of the expense of repairing the bridge, unless done in the manner and under the circumstances as provided and before referred to in the act of 1857. The defendants, as commissioners of highways, were not charged with any duty with respect to the care and maintenance of roads or bridges, except in so far as they were furnished with the power to provide means, or were previously provided with means by the town to accomplish such purpose. (People v. Adsit, 2 Hill, 619; Barker v. Loomis, 6 id., 463; People ex rel. Everett v. Board of Suprs., 93 N. Y., 402.) If the parties, as commissioners, assume to make contracts or assume liabilities not authorized by statute, neither the commissioners as such, nor the towns, are liable, but the commissioners are individually liable. (93 N. Y,, 403, svpra '.) But as before stated there was no contract either express or implied to lend, or advance, or to borrow and repay the moneys sought to be recovered in this action.

The cases referred to by the learned counsel for the appellant I think do not militate against these views.

The case of Victory v. Blood (25 Hun, 515), was a case brought by the incoming commissioner against the out-going commissioner for moneys in his hands, where the statute made it the duty of the defendant to pay over such moneys to the plaintiff; and Justice Learned dissented to the maintenance of the action in that case.

In the case of Lapham v. Rice (55 N. Y., 472), the question under discussion was not raised, and the question discussed related to the jurisdiction of the action and the right to amend, and the court moreover held there was no cause of action in favor of any one.

The case of Beckwith v. Whalen (70 N. Y., 430), was where the steps, under statute of 185.7, viz., notice in writing to repair and refusal, etc., had been taken to authorize the bringing of the action by the commissioners of one town against the commissioners of the other town.

TMy conclusion is, that if the judgment of the referee was erroneous upon the ground he placed it, the action cannot be maintained! in its present form, and a new trial should not be granted.

Judgment reversed on law and fact, referee discharged, new trial granted, costs to abide event.


author: By the Court :

text:
    LELIA E. MARSH, Appellant, v. THE VILLAGE OF LANSINGBURGH, Respondent.

      Costs — liability of a municipal corporation therefor, in an action in a Justice’s Cov/i't— Code of Civil Procedure, sec. 3347, sub. 13, 3245.
    Section 3245 of the Code of Civil Procedure, providing that costs cannot be awarded to the plaintiff in an action against a municipal corporation, unless the claim upon which it is founded has, before the commencement of the action, been presented for payment to the chief fiscal officer of the corporation, does not apply to actions which are commenced in a Justice’s Court,1 nor is the plaintiff’s right to recover costs affected by the fact that the defendant has appealed from the decision of the justice to the County Court, where the plaintiff has again recovered a judgment.
    Appeal by tbe plaintiff from an order of the Rensselaer county judge, affirming the action of the clerk of Rensselaer county in refusing to tax the plaintiff’s costs on the trial of the action, in the Rensselaer County Court, on an appeal, from a judgment of a J ustice’s Court, and dismissing the appeal taken from such refusal to tax such costs.
    The action was originally commenced in the Justices’ Court of the city of Troy, and was brought to recover damages for obstructing Van Schaick street, in that city. From the judgment there obtained by the plaintiff an appeal was taken to the County Court, where the case was re-tri ed and a verdict rendered in favor of the plaintiff.
    The clerk refused to tax the plaintiff’s costs on the ground that no costs were taxable under section 3245 of the Code of Ciyil Procedure, for the reason that the complaint of the plaintiff demanded judgment for money only, and was not presented for payment to the treasurer of defendant, the chief fiscal officer of the defendant.1

      Henry A. Merritt, for the appellant.

      R. A. Parmenter, for the respondent.
   By the Court :

One point which we understand was not suggested to the learned county judge seems conclusive. The defendant relies on section 3245 of the Code of Civil Procedure.^

Section 3317, subdivision 13, declares that title 1, of chapter 21 (which includes section 3215) applies only to an action in one of the courts specified in subdivision 1. Subdivision 1 does not specify a Justice’s Court.

The defendant, however, urges that although this action was commenced in a Justice’s Court, yet it was taken by appeal to a County Court, which is one of those specified in subdivision 1, and, therefore, that it is now an action in the County Court; and hence that section 3215 does apply. But we cannot agree with this view. When the plaintiff commenced this action in a Justice’s Court, she was not required to have previously presented the claim to the fiscal officer, at the peril of losing costs under section 3215. For we have seen that that section does not apply to Justice’s Courts. Now it would be an unreasonable construction to hold that the defendant, by appealing to the County Court, could change the plaintiff’s rights in this' respect, and could deprive her of costs for having failed to present her claim under that section. Nor would it be an unreasonable construction even to hold that subdivision 13, by its reference to subdivision 1, included the words in that latter section contained viz.: An action commenced in the Supreme Court,” etc., and thus distinctly excluded actions commenced in a Justice’s Court.

We think the order should be reversed, with ten dollars costs and printing disbursements, and the determination of the clerk reversed, with ten dollars costs.

Present — Learned, P. J., Boardman and Potter, JJ.

Order reversed, with ten dollars costs and printing disbursements, and determination of the clerk reversed, with ten dollars costs.