author: Bockes, J.: Learned, P. J.

text:
    JUSTUS W. VICTORY, as Commissioner of Highways, etc., Respondent, v. BENJAMIN BLOOD, Appellant.

      Oommissionec' of highways — right of to sue his predecessor to recover moneys held by the latter.

    A commissioner of highways can maintain an action against his predecessor in office to recover moneys received by the latter as commissioner, and remaining unexpended in his hands on the expiration of his official term. (Learned, P. J., dissenting.)
    Appeal from an interlocutory judgment, entered upon the trial of this action by the court without a jury.

      Martin L. Stover, for the appellant.
    IF. L. Van Denburgh, for the respondent..
   Bockes, J.:

This action was brought by the plaintiff, commissioner of highways of the town of Florida, Montgomery county, to recover against the defendant, his predecessor in office, for moneys alleged to have been received by the latter in his official capacity, and not accounted for nor paid over to the plaintiff, his successor in office.

The case comes before the court on an appeal by the defendant from an interlocutory judgment, whereby it was decided and adjudged by the justice who tried the cause without a jury — a jury trial having been duly waived — first, that the action was maintainable by the plaintiff in his official capacity for the cause alleged; and, second, that a demand for an accounting and for payment of money remaining unexpended in his hands had been made by the plaintiff of the defendant prior to the commencement of the action, and that he had omitted to comply with such demapd.

It was stipulated on the trial, as the record states, that these questions, one of law the other of fact, should be tried and determined by the judge; and if found in favor of the plaintiff, then that a reference should be ordered to take and state the defendant’s account as late commissioner. Of course, if either of these quéstions should be found against the plaintiff, a dismissal of the complaint would follow; but the learned justice found both of the propositions in his favor, as above stated, and these findings are now challenged on this appeal.

The leading and important question in this case undoubtedly is, whether the action can be maintained by the plaintiff in his official capacity; whether a commissioner of highways can maintain an action against his predecessor in office for moneys received by the latter as commissioner, and remaining unexpended in his hands on the expiration of his official term. It is proposed first to examine this question.

It stands undisputed that commissioners of highways are authorized by various provisions of law to obtain and receive moneys to be held, expended and disbursed by them as such officers in their official capacity. Their rights, duties and obligations in the obtaining and expending of such moneys are prescribed by statute. Those moneys, when received, constitute a fund in the hands of such officers, to be by them disbursed in the maintenance of roads and bridges. These moneys pertain to and must follow the officer. They belong to the officer or officers, if more than one, for the purpose of meeting expenses and outlays in the necessary and proper exercise of the duties of the office. No other officer or body has any control over their disbursement, save perhaps in some instances of express direction as to particular object and amount, and then the disbursement must be made by the commissioner or commissioners. The money on hand unexpended at all times belongs to the officer, and the incumbent of the office is at all times entitled to its possession and control. It must follow, as was laid down in The Overseers of Pittstown v. The Overseers of Plattsburgh (18 Johns., 407, 418), that in such case those officers will possess a power to vindicate their rights in regard to such moneys by action in the courts, even without any express authority by a legislative enactment. It is stated in the case cited that public officers must necessarily possess a capacity to sue, commensurate with their public trusts and duties. This doctrine of the law is recognized and has been acted on in many other cases. {Todd, overeeer, v. Birdsall, 1 Cowen, 260; Supervisors v. Stimson, 4 Hill, 136 ; Clarissy v. Met. Fire Dep., 7 Abb. [N. S.], 352; Hathaway, supervisor, v. Town of Homer, 5 Lans., 273; Looney v. Hughes, 26 N. Y., 514, 516; People v. Supervisors of New York, 32 id , 477.) As was said in effect in Hathaway, supervisor, v. Town of Homer {supra), it is enough that money belonging to the plaintiff, as commissioner, is in the hands of the defendant to entitle the plaintiff to demand and have it, and if its payment be omitted and refused the former may maintain an action for its recovery. Indeed it is the legal duty of the party in such case to pay over to his successor in office all moneys in his hands unexpended, without demand, within reasonable time after the expiration of his term of office.

But we are of the opinion that there is express authority conferred by statute to maintain this action on the facts stated in the complaint. Section 112 (3 Rev. Stat. [6th ed.], 758,) provides that actions may be brought by “ commissioners of highways of the several towns * * * to enforce any liability or any duty enjoined by law, to such officers or the body which they represent.” The present Code of Civil Procedure differs somewhat from the statute cited in its language, but it is somewhat more comprehensive in its terms and meaning. (Code of Civil Pro. § 1926.) It is there provided that an action may be maintained by “ the commissioner or commissioners of highways of a town * * * to enforce a liability created, or a duty enjoined by law upon those, officers, * * * ' or to recover damages for an injury to the property or rights of those officers or the body represented by them.” Now it is the duty of an outgoing commissioner, on the expiration of his term of office, to account to the town authorities and to pay over to his successor in office all moneys remaining in his hands as such commissioner. (1 Rev. Stat. [6th ed.], 850, § 11; Id., 846, § 73 ; Id., 834, § 48.) An omission and refusal so to account and to pay over moneys remaining in his hands is an injury to the rights of his successor in office, and creates a liability against him in favor of the latter. So an action by the latter is expressly given against him by the laws above cited. It is urged that section 11 of the Revised Statutes, above referred to, only requires the outgoing officer to pay over to his successor the balance of moneys remaining in his hands “ as ascertained by the auditors of town accounts.” Undoubtedly he might and should account to the board of town auditors, and the certificate of the board with payment to his successor of the amount found in his hands unexpended, would be a discharge of further liability to his successor. But this statutory duty in no way relieves him from his common law obligation to pay over to his successor the moneys to which the latter may be entitled. This provision of law does not create a condition precedent on which the right of the incumbent of the office to demand and have the money is made to depend. Its principal object is to secure an itemized statement from the outgoing officer, to the end that it may be seen that the money received by that officer has been fairly and fully disbursed or accounted for. His first and paramount duty is to pay over to his successor the moneys in his hands unexpended. He is presumed to know the exact amount so held by him and belonging to his successor, and payment to the latter at once is often and indeed generally important and necessary to meet the requirements of public convenience and needs. Retaining it an unnecessary and unreasonable length of time, and especially to refuse to account and pay over what may remain in his hands, is a breach of public trust and duty. No wrong is inflicted upon the outgoing officer by requiring such payment. The statute, which requires payment of the balance in his hands on an accounting before the board of audit, in no way restricts the rights of the incumbent to demand and have such balance. The right to demand and have such balance exists without that statute. So far as this law has effect on the rights of the incumbent of the office, it is but cumulative. It is further urged that the commissioner cannot maintain the suit, because an action is given to the supervisor of the town on the defendant’s official bond. (Sec. 18, above cited.) But such action by the supervisor would be for the benefit of the commissioner and cumulative to the right of the latter to bring suit himself for money held and detained by another to which he was entitled. (See remarks of Davis, J., in Looney v. Hughes, 30 Barb., 611, 612.) The case of Hagadorn v. Raux (72 N. Y., 583) is not in conflict with this conclusion. We must hold, as we think, that the defendant was bound to pay over to his successor all moneys in his hands unexpended, at the expiration of his official term; and that an omission and refusal on his part to make such payment would give his successor in office a right of action therefor. Such is our conclusion on the question of law presented on this appeal.

The record shows that the parties stipulated on the trial that the judge should take evidence as to the demand, alleged in the complaint to have been made of the defendant, for an accounting and for payment to the plaintiff of any moneys remaining in his hands at the expiration of his official term. Evidence was. submitted on this question of fact, and the learned judge found thereon in favor of the plaintiff.

It is now urged that such finding is erroneous, because unsupported by the proof; and it is further urged that evidence tendered by the defendant bearing on this question was erroneously excluded. On looking into the case we are of the opinion that the finding is supported by the proof. There is evidence tending to show, and as we think showing, that the plaintiff was full and broad in his demand upon the defendant as well for an accounting (although this was not, perhaps, necessary to the action) as also for the moneys claimed as remaining unexpended in his hands. The defendant very manifestly denied, and intended to be understood as denying, to the plaintiff all right and claim upon him by the latter for any and all causes whatsoever. Such is the fair and just import of the evidence. Nor do we think any material evidence offered by the defendant- bearing on the question of the demand was excluded. The excluded evidence did not bear at all on that question. It would, perhaps, be competent on the taking of the account before tlie referee, but that subject need not be here considered. We do not see that any evidence bearing on the question of demand was improperly excluded.

The interlocutory judgment appealed from must be affirmed, with costs of appeal against the appellant.

These costs should be included in the general recovery by the plaintiff, when final judgment shall be awarded in case the plaintiff shall have the costs of the action awarded to him, otherwise to be deducted from the defendant’s recovery in case he shall succeed in the action. It should be noted that by the interlocutory judgment the question of general costs was reserved until the coming in of the referee’s report on the accounting, which accounting should now be proceeded with.

Judgment affirmed, with costs as above suggested.

Boakdman, J., concurred.

Learned, P. J.

(dissenting) :

This action is brought by the present commissioner of highways of the town of Florida against his predecessor in office. The complaint sets forth that plaintiff is such commissioner, and that defendant was his immediate predecessor. That defendant, as such commissioner, received a large amount of money, and that • he still retains several hundred dollars thereof. That the plaintiff has requested the defendant to render him an account of all moneys received and paid as commissioner, and to pay over the balance, and that the defendant has refused. And the complaint demands that the defendant render an account and pay $1,000. The answer denies everything except that the plaintiff is commissioner, and the defendant was his predecessor.

On the trial of the case some proof was given that the plaintiff had made a demand. This was denied, but on the conflicting evidence the court found a demand. No evidence whatever was received that the defendant still had any moneys in his hands in his official capacity; something that had been given on that point being stricken out. The defendant offered to show tliac he had accounted to the plaintiff for the moneys in his hands as commissioner at the expiration of his term of office. The plaintiff objected and the court excluded the evidence, saying that the only question then to be tried was the demand. To this the defendant excepted..

It is recited in the decision, made by the learned justice, that it was consented that evidence should be taken on the alleged demand, and that if the court should find that there was a demand and that the complaint was sufficient, an accounting should be had before a referee. Unfortunately in the case and exceptions made for the purpose of reviewing this decision no such agreement appears. And that case and exceptions are stated to contain all the testimony and proceedings had and taken upon the said trial. We are embarrassed, therefore, by the fact that the learned justice, in settling the case, has by implication said that there was no such agreement.

The decision finds that the plaintiff is commissioner, and that the defendant was his predecessor and received moneys; that the plaintiff has demanded the balance of moneys in the defendant’s hands, and that the defendant has not rendered to plaintiff an account or paid him any money. It does not find that the defendant has any money in his hands; and it appoints a referee to take the defendant’s accounts and require the defendant to pay to the plaintiff any money found due on such accounting. Thus the decision of the court goes further than to hold that a commissioner of highways may recover moneys in the hands of his predecessor. It holds that a commissioner may bring an action for an accounting, even though there should be no moneys in the predecessor’s hands, and may recover the balance which may be found to be in his hands on such an accounting. That is, it holds that a commissioner of highways, whose term of office has expired, may be called to render his accounts before a referee appointed in an action brought by his successor in office.

By chapter 172, Laws 1863 (1 R. S. [6th ed.], 816, §§ 72, 73), the town auditors are authorized and required to examine the accounts of the commissioners of highways, and the commissioners are required to account with the town officers for moneys received and disbursed by them. By 1 Revised Statutes (m. p. 502, § 3) the commissioners of highways are to render their account to, the board of town auditors at their annual meeting for auditing accounts. By 1 Revised Statutes, m. p. 359, section 7 (1 R. S. [6th ed.], 850, § 11) the commissioner of highways, on going out of office, is to pay to his successor the balance of moneys remaining in his hands, as ascertained by the auditors of town accounts.” Thus the statutes have provided a body before whom it is the duty and the privilege of the outgoing commissioner to account. And the duty imposed on him of paying over money to his successor is limited to the balance as ascertained by that body. The moneys in his hands come from the inhabitants of the town, and are to be used in caring for the highways of the town. It is highly proper, therefore, that the town auditors, who are the persons representing the town in such matters, should have control of the accounting. It seems to me that it would be improper that the successor in office should control the accounting. If the successor may maintain an action for an accounting there is nothing to protect the town against collusion. For if the accounting ordered in this case is legal, then it will be binding on the town and on the defendant. The defendant could not be required to account again before the town auditors after having accounted in this action. Thus the town will be deprived of its right to call its officer to an accounting. For, if the plaintiff can call this defendant to an accounting, then it follows that this plaintiff can allow or disallow any items in the defendant’s account. And if he can do this in an action, he could have done it without an action.

And it comes to this, that an outgoing commissioner of highways may settle his accounts with his successor in office. I know of no right which exists in any officer, by mere virtue of his office and without express statutory authority, to settle and pass upon the accounts of his predecessor.

And it will be observed that in 1 Revised Statutes (m. p. 358, 359), sections 5 and 7, it is provided that the successor is entitled immediately to the “ records, boohs and papers.” But that when the balance of moneys is spoken of, it is the balance “ as ascertained by the auditors of town accounts.” Thus a distinction is drawn as to the records, books and papers, which are to be handed over at once, and the balance of moneys, which must first be ascertained by the town auditors. And the distinction is sound, for the reasons above given. Because the town, through its creditors, has a rigid to control the accounting. And it may be seen also that in the fol lowing sections (8 and 9) it is only tbe records, books and papers which are provided for. We are referred also by the plaintiff to Laws of 1845, chapter 180, section 3 (1 R. S. [6th ed.], 834, § 48). This section requires the commissioner of highways to give a bond to the supervisor conditioned, among other things, to pay over the moneys remaining in his hands to his successor on account. But plainly this section gives no right of action to the successor. The right of action must be with the obligee, that is the supervisor. And nothing authorizes the successor to determine the amount due, by having an accounting. At any rate the present action is not upon the bond. I do not think it necessary to inquire whether or not an action for the balance found in the outgoing commissioner’s hands might not be maintained by his successor, after the balance had been “ ascertained by the auditors of town accounts.” For then he is directed by statute to pay it over. But I find no statute or authority authorizing or permitting him to settle his accounts with his successor, and none which gives the successor any right to sue for the balance before it has been ascertained by the town auditors. The case of Hagadorn v. Raux (72 N. Y., 583) is closely in point. There a supervisor sued his predecessor for moreys alleged to be in his hands, and to have been erroneously omitted in his accounts rendered to the town auditors. The court refer to 1 Revised Statutes (m. p., 359, § 7), and say that it was the supervisor’s duty to pay to his successor any amount ascertained by the town auditors. But it was not claimed that he had neglected to do this. The plaintiff sued to recover amounts, as to which the defendant had not accounted before the auditors; just as the plaintiff had done in the present case. The court said that the action should be by the town. (Laws 1866, chap. 534.) That case shows that the court considered the duty imposed on an officer by section 7, above cited, to be limited to the balance as “ ascertained by the town auditors.”

The position of the parties interested may be illustrated by a case where a principal has discharged one agent and appointed another in the same business. The outgoing agent would have to settle his accounts with the principal. When a balance had been ascertained he might be authorized to pay over to his successor.

There is another point. The defendant offered to prove that he had in fact rendered to the plaintiff a true account. He was asked, Did the highway book delivered to you by Yictory contain a true account and statement of your account as commissioner of highways?” This was objected to and excluded. The plaintiff himself had testified that the defendant had given him a book containing what purported to be his accounts; but this evidence was stricken out. Now, even if it were the duty of the defendant to account to the plaintiff, here was evidence offered to show that he had done so, and again a formal offer to prove that he had accounted to plaintiff was made. If he had accounted, how could he be liable to an action to compel an accounting? Yet the learned justices finds that the defendant had rendered no account of moneys received and paid out by him as commissioner. Thus the learned justice found that the defendant had not done that which he refused to permit the defendant to prove that he had done.

I think the judgment should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex. rel. MARIA TUTHILL v. WILLIAM F. RUSSELL, Respondent.

      Sv/reties upon a sheriff’s bond — a judgment against the sheriff is not admissible as evidence in an action against them.

    Ir an action against the sureties upon the official bond of a sheriff a judgment recovered against the latter because of a failure to return an execution is not, as against the sureties, even prima facie evidence of the failure of the sheriff to well and faithfully perform and execute the duties of his office.

      'ahornas v. JLubbell (15 N. Y., 405) followed; JOowell v. Parker (10 Met., 309); Tracy v. Goodwin (5 Allen, 409), and Bennie v. Smith (129 Mass., 143) not followed.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed at the circuit.

      8. 8. Lancaster and J. Newton Fiero, for the relator.

      P. Ganiine, for the respondent.
   Learned, P. J.:

This is an action against the surety on a sheriff’s official bond, and the question is whether a judgment recovered against the sheriff for a false return is evidence against the surety, of a breach of the bond. The condition of the bond, as usual, is that the principal “ shall well and faithfully, in all things, perform and execute the office of sheriff.” And therefore we must inquire whether the judgment is evidence, as against this defendant, that the sheriff did not faithfully perform his office. .

. Now it must be noticed that the obligation of this surety is in its form quite different from that of a surety on an administrator’s bond. In such a bond ■ the surety undertakes that the principal, among other things, “ shall obey all orders of such surrogate touching the estate.” When, then, an order of the surrogate has been made, the surety has undertaken that the principal shall obey iff Therefore the production of the order on the trial of the action against the surety shows a breach of the bond. And this is conclusive against the surety unless he show fraud or collusion. He has agreed that the principal shall obey the surrogate’s order; the surrogate, as a matter of fact, has ordered the principal to pay such moneys; therefore the surety is liable. The judgment proves, not the fact of the principal’s misconduct, but the fact that the surrogate has made a certain order, i. e., rem, ipsam. (Gerould v. Wilson, 81 N. Y., 573; Casoni v. Jerome, 58 N. Y., 315.) This is evidently what the court mean in that last case, where they say that, by his contract, the surety has made himself privy to the proceedings against the principal. In other words, the surety has agreed that the principal shall obey the judgment. (See, in illustration, Douglass v. Howland, 24 Wend., 35; Jackson v. Griswold, 4 Hill, 522; Annett v. Terry, 35 N. Y., 256.)

It is on the same principle that sureties on an injunction undertaking are concluded by the assessment of damages against' the principal, unless they show fraud or collusion. (Jordan v. Volkenning, 72 N. Y., 300.) For the surety undertakes to pay the damages’ which may be recovered by the party enjoined. (Code Civ; Pro., 611.) Hence, proof that the party enjoined has in fact recovered so much makes the surety liable.

It is not that, in either of these classes of cases, the surety is a privy to the judgment, and is for that reason bound thereby. He is not a privy in estate, blood or law. (1 Greenl. Ev., § 189.) But he has agreed to pay the judgment or the order; and therefore the judgment or order shows his liability. As if the surety had given a bond to pay all promissory notes made by his principal, the production ol a note would show his liability; because, as a matter of fact, it was the thing he had agreed to pay; not because he was a privy to the note, in accurate language.

But the surety on the sheriff’s official bond has not agreed that his principal shall pay any specific judgment, or that his principal shall pay any judgment whatever. And hence the production of the judgment shows no liability. He has agreed that the principal shall faithfully perform his office. But the judgment against the plaintiff does not, as against the surety, show that the sheriff did. not so perform. The surety was a stranger to that judgment, and on well settled principles it is no evidence for or against him. This is so held in Douglass v. Howland (ut supra, 53, etc.); and again in Jackson v. Griswold (4 Hill, 529).

In Thomas v. Hubbell (15 N. Y., 405) the sheriff sued his deputy and the sureties of the deputy for misconduct of the deputy. A previous action had been brought against the sheriff for the misconduct of the deputy, of which action the deputy had notice. This previous action, therefore, was conclusive against the deputy, and the subsequent action stood practically as if a judgment had been recovered against the deputy for his misconduct. But it was held that a judgment against the sheriff (which was, as above stated, conclusive against the deputy) was not evidence against the sureties. That case is closely analogous with the one- under consideration. It was again before the court in 35 New York, 120, and no dissent was expressed from these views. We think the rule is settled by authority and sound in principle.

A different rule is laid down in Massachusetts (Lowell v. Parker, 10 Met., 309; Tracy v. Goodwin, 5 Allen, 409, and'adhered to in Dennie v. Smith, 129 Mass., 143); and also, it is said, in Pennsylvania. The Massachusetts case admits the question to have been held differently by different courts, and there is no reasoning there which shakes the doctrine of Thomas v. Hubbell {ut supra). The appellant urges that the judgment was prima facie evidence, even if' not conclusive. But that was not the doctrine of the case just cited. And indeed if the defendant is properly a privy to the judgment it would be conclusive, unless it were shown to have been obtained by fraud or collusion. If he is not a privy, then it is not prima, facie evidence of the sheriff’s misconduct.

Motion for new trial denied, and judgment ordered for defendant on nonsuit.

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

So ordered.


author: Bocees, J.: Learned, P. J.

text:
    EMMA WALKER, Appellant, v. THOMAS B. MITCHELL, Respondent.

      Conditional sale of personal property— a bona fide purchaser, from the vendee acquires no better title than he has.

    Where personal property is sold and delivered upon the condition that the title thereto shall remain in the vendor until the purchase-price has been fully paid, one purchasing the property from the vendee in good faith and -without notice of the agreement acquires no better title thereto than his vendor had. (Learned, P. J., dissenting.)
    Appeal from a judgment of the County Court of Albany county, entered upon a nonsuit directed upon the trial.
    The action was brought in a Justices’ Court to replevy a team of horses sold by the plaintiff to one Hanna on condition that the title thereto should remain in the vendor until the purchase-price was fully paid. The defendant claimed to have purchased the team from Hanna in good faith and without notice of the plaintiff’s title.

      J. D. Hallen, for the appellant.

      1. W. Zansing, for the respondent.
   Bocees, J.:

The evidence in this case tended to prove, and as it stands in the record did prove, that the sale of the oxen was conditional, that is, that the title should remain in the vendor until the purchase-price was fully paid. The case is, therefore, brought directly within the decision in Ballard v. Burgett (40 N. Y., 314), overruling Wait v. Green (36 N. Y., 556). The decision in the former case received 'direct approval in Austin v. Dye (46 N. Y., 500), and in Humeston v. Cherry (23 Hun, 141) the doctrine of that case was declared to be the settled law of this State. (See, also, Nash v. Weaver, 23 Hun, 516.) To the same effect is the decision in Cole v. Mann (62 N. Y., 1), also in Knowlson v. Sprong (10 W. D., 81). The cases cited also further held (notably the leading one of Ballard v. Burgett) that a bona fide purchaser from the vendee obtains • no better title than had the latter. The case of Comer v. Cunningham (77 N. Y., 391) lays down no new rule of law on this subject. Indeed, the doctrine of Ballard v. Burgett there receives entire sanction. (Page 399; see, also, 24 Alb. Law Jour., 363). On the authority of the decisions above referred to a new trial must be ■granted in this case.

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

Boardman, J., concurred.

Learned, P. J.

(dissenting):

The latest authority of the Court of Appeals on the vexed question as to the rights of third persons, in the case of what are usually (though not accurately) called conditional sales of personal property, is the case of Comer v. Cunningham (77 N. Y., 391). It is not necessary for us to attempt to reconcile or distinguish ” or to examine Herrig v. Hoppock (15 N. Y., 409); Wait v. Green (36 id., 556); Ballard v. Burgett (40 id., 314); Austin v. Dye (46 id., 500). It is enough to take the latest decision above cited.

There goods were sold in Georgia. By a statute of that State, which it was assumed entered into and became part of the contract, such goods “ shall not be considered as the property of the buyer or the ownership given up until the same shall be fully paid for, although it (the goods) may have been delivered into the possession of the buyer.” :'

This is substantially the agreement which the plaintiff claims was made in the present case. The court held in that case that under these terms of the contract the deliverxj was conditional, but the sale present and absolute, and that after actual delivery a bona fide purchaser from the vendee obtained a good title.

The case of Coman v. Lakey (80 N. Y., 345) does not touch the question here involved. It seems to hold that the vendor of personal property has an equitable lien for the purchase-price, except against a bona fide purchaser.

Following Comer v. Cunningham we should affirm the judgment.

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


author: Learned, P. J.; Boardman, J.

text:
    JAMES ROCKWELL and HENRY L. WHITE v. FRANKLIN CARPENTER, JOHN P. HETTRICH and WILLIAM G. HETTRICH. ELIAS H. PETERS, as Receiver, etc., of JOHN P. HETTRICH and WILLIAM G. HETTRICH and Others, Appellant, v. FRANKLIN CARPENTER, as Assignee of JOHN P. HETTRICH and WILLIAM G. HETTRICH and Others, Respondent.

      Judgment — power of the court to correct errors or mistakes in it, after its ent/ry.

    The plaintiff, who had been appointed a receiver in supplementary proceedings instituted against a firm, brought this action against the defendant to set aside as fraudulent a general assignment made by the said firm to him, and recovered a judgment therein setting aside the assignment, adjudging that the defendant had received $2,500, and requiring him to pay, out of the assets so received, to the plaintiff the sum of $2,196.17, with interest and costs. Thereafter the defendant presented to the judge before whom the action was tried an affidavit showing that he had received but $2,631.37; that before the commencement of this action he had paid out $430.77, and that in an action of replevin brought against him by one Rockwell, which -was tried and decided at the same time and by the same judge who tried and decided this action, a judgment for $334.05 had been recovered against him, and moved thereon, and obtained an order to the effect that he, the defendant, be charged with $2,631.37 and interest, to wit, $2,786.37, and credited with the amounts set forth in the affidavit, to wit, $766.27, and ordering that the roll be taken from the flies and the decision and judgment be amended so as to declare that the assets in the defendant’s hands, applicable to the payment of the plaintiff’s demand, were $2,020.10.
      Held, that the order was improperly made and should he reversed; that the plaintiff’s remedy,' if any, was by an appeal or by a motion for a new trial.
    . (Boardman, J., dissenting.)
    Appeal by Peters, as receiver, etc., the plaintiff in the second above entitled action, from an order made in said action at a Special Term directing that unless the plaintiff would consent to. accept a sum, fixed by the order, in full satisfaction of the judgment, which was for a larger sum, that then the judgment roll should be taken from the files and the decision be amended and modified, and that a new and reduced judgment should be entered up thereon.

      A. Pond, for the appellant.

      J. W. Houghton, for the respondent.
   Learned, P. J.;

If possible, I should very willingly agree to affirm the order appealed from, because it appears to have worked out what is called “ substantial justice.” But I am unable to do so, for the reason that the order seems to me to violate an important principle, and to be of a dangerous tendency.

The Hettrichs made a general assignment to Carpenter for the payment of their debts. Rockwell brought an action of replevin against Carpenter, and seized some of the property. Carpenter gave the requisite bonds and took the same back. Afterwards Peters, a receiver of the Hettrichs, appointed under proceedings supplementary, brought this action to set aside the assignment as fraudulent. Both this action and the action of Rockwell were tried at the same Special Term, before the same justice, October, 1880, and his decision in each case was rendered about March 5, 1881. In the Rockwell' action judgment was entered against Carpenter for $334.05 damages and costs. In the action of Peters, receiver, judgment was entered declaring the assignment fraudulent, and adjudging that Carpenter pay the plaintiff, out of the sum of $2,500 which was in his hands December 17, 1879, the day of the commencement of the action, $2,196.17, being the amount of the judgments in the actions in which Peters was appointed receiver, with interest and costs. This judgment appears to have been entered March 5, 1881.

Subsequently Carpenter made a motion on affidavits setting forth that all the assets which had come into his hands as assignee were $2,631.37. That before the commencement of this action he had paid out $430.77, and that Rockwell had recovered against him $334.05, and asking that this judgment of Peters against him be modified so as to require him to pay only the balance in his hands after deducting these expenses and the Rockwell judgment.

Thereupon on the 19th of April, 1881, the Special Term, held by the same justice who tried 'the actions, made an order, stating that Carpenter ought to have been charged with $2,631.37 and interest, making $2,786.37, and credited with the above amounts, in all $766.27, leaving a balance of $2,020.10, and ordering that the roll be taken from the files and the decision and judgment be amended by declaring that the assets in the defendant’s hands applicable to plaintiff’s demands and costs are $2,020.10. From this order the plaintiff appeals.

Now I admit to the fullest extent the right of this court to correct what are properly called mistakes, that is, clerical errors, defective papers and the like. For instance in Mechanics’ Bank v. Minthorne (19 Johns., 244) there was judgment for want of plea. Therefore the declaration, which was on a promissory note, was admitted. The clerk made a mistake in computing the interest. The court corrected the mistake even after payment of the judgment. The correction involved no new fact and no new decision of law. Lawrence v. Cornett (4 Johns. Ch., 545) was the case of the amendment of a decree before enrollment. Before enrollment the Court of Chancery would rectify obvious mistakes; but the general rule was that afterwards it could be altered only by bill of review. (1 Barb. Oh. Pr., 349, 366.) Enrollment was analogous to filing a judgment roll in the Supreme Court. Pettigrew v. Mayor (17 How., 492) is a Special Term case. It was a motion to set aside and vacate a judgment and report of a referee after trial. It was a case where a defendant applied for a new trial on the ground of some alleged fraud or mistake; and that was the relief granted. There is no question about the right to grant a new trial for surprise and the like in a proper case. But that is not what the Special Term did in the present case. Levy v. Joyce (1 Bosw., 622) is a case of the same nature. The judgment was opened so as to permit a defendant to make certain proof which, by- mistake, he had neglected. The court did not change the decision already given on the proof, but allowed, to a limited extent, a new trial. In McCall v. McCall (54 N. Y., 541) the court refused to set aside a judgment, but allowed a party to bring-another action, ordering that the judgment already entered should not be a bar. New York Ice Company v. Northwestern Insurance Company (23 N. Y., 357) decides nothing, because the appeal was dismissed. Anything said in the opinion has only the weight of the good sense contained in it. Kamp v. Kamp (59 N. Y., 212) holds that, in an action for divorce, after judgment the court cannot make an order for alimony. This was on the ground that the judgment was final as to the matter litigated and as to every matter which might have been litigated. That decision seems to condemn the order now appealed from. So the case of McLean v. Stewart (21 Sup. Ct. N. Y. [14 Hun], 472) was one where an action had been tried before a judge without a jury, a decision made and judgment thereon entered. Afterwards the same judge, on motion, changed his decision and judgment as to a small part of the amount involved. The General Term held that he could not do this; that the change might be proper, but that it related to the merits, and could only be made upon a rehearing or after review by an appellate court. That case is closely analogous to the present. There is no question that Carpenter might have moved for a new trial, on the ground of surprise, newly discovered evidence and the like. If he had had a new trial, the question of what expenses he had paid and whether they were reasonable would have been tried on common-law proof. Of the right to such a tidal his opponent has been deprived. Probably (though we express no opinion on that point) the facts set up in his affidavits would justify a court in granting him a new trial on the usual terms. But that is not the relief he has obtained. He has procured an order which varies the findings of fact in one respect; which finds new facts, and which adopts a principle of law not contained in the decisi on, and which changes the judgment. It varies the findings, because it finds that Carpenter had $2,786.37 in his hands instead of $2,500. It makes new findings of fact, because it finds that he incurred expenses, $430.77, aud has suffered a judgment for $335.50. It adopts a principle of law not contained in the former judgment, because it holds that his expenses and this judgment recovered are to be deducted; and it changes the judgment by reducing the amount.

Now, it is very possible that if these questions had been tried by court the court would have properly come to the result shown in the order. The difficulty is that these matters were not tried, or if tried the court came to the result stated in the decision which is contained in the judgment. In fact the judgment in favor of Rockwell was not recovered until the judgment in the present case was recovered. So that the Rockwell judgment allowed by the order as a deduction was not in existence in October, 1880, when this case was tried. The court, therefore, modifies the result of a ease tried in October, 1880, by the fact that a judgment was recovered in March, 1881.

There is another objection to this order. The complaint in this action states that Carpenter at the commencement of the action had in his hands about $2,500 avails of the property assigned. This allegation, with others, the answer admits, denying the alleged fraud. The plaintiff therefore, as his claim amounted to less than this sum, had no occasion to show, except by this admission, what Carpenter had, and the justice who tried the case probably adopting the admission found that Carpenter had $2,500 proceeds of the assignment at the commencement of the action. Thus we have an admission of the defendant of the very point on which the Special Term, upon affidavits, has altered the decision and judgment.

In brief this is not the case of a clerical mistake; it is the case of alleged error in findings of fact and of law. The error can be remedied only on appeal or on a new trial granted for good cause and on the usual terms.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs. This is without prejudice to any motion which Carpenter may make for a new trial if he be so advised.

Boardman, J.

(dissenting):

Carpenter was the assignee of H. & H. under a general assignment for the payment of their debts. After he had taken possession of the assigned property, Rockwell and others brought the action first above entitled against him in replevin for certain property. Carpenter retained the same by giving the requisite bond. Some months after, Peters, who had been appointed the receiver of the property of H. & EL, brought the action secondly above entitled against Carpenter and EL & H., to set aside the assignment as fraudulent. Both actions were tried before Mr. Justice Landon and both were decided March 5,1881. Judgment in the first action was rendered against Carpenter for $334.50 damages and costs, and in the second action for $2,196.17 damages and costs. On the 19th of April, 1881, Mr. Justice Landon corrected the latter judgment by reducing the assets in Carpenter’s hands to be accounted for and paid over to the receiver, so far as was right and proper by reason of the judgment recovered by Rockwell against Carpenter to be paid out of the same assets. A further reduction was also made for expenses incurred by Carpenter as assignee after the assignment and before the commencement of the second action. The evidence upon the trial was in part the same in both actions and both related to the same assigned property. This correction was made because the judge recalled the facts and saw that by inadvertence he had omitted to make the proper credits to the defendant Carpenter, due to him when the two cases were decided. The evidence upon the trial is not returned to us. By this amendment the moneys going into the hands of the receiver are not sufficient to satisfy in full the judgments represented by him, and therefore he appeals from the order modifying the judgment.

There are no facts to justify this court in reversing this order as a matter of discretion if we have that power. (Butler v. Niles, 28 How., 181.) The Rockwell judgment is plainly entitled to be paid out of the assigned property in preference to the receiver’s judgment. That fact was patent to the judge who tried both cases at the same time. Nothing but inadvertence caused the judge to omit to make such deduction before stating the amount which the receiver should recover. Carpenter was also allowed the amount of his expenses incurred before the receiver’s action was begun. These allowances were proper in themselves, and were, in the discretion of the court, based upon facts within its knowledge from the proceedings and evidence in the case.

The real question to decide is, whether the court at Special Term, on motion, had thepower to correct the judgment roll as was done, the judge who directed the judgment and made the order being the same, and the correction made being founded upon a mistake and omission made by the judge himself in directing judgment.

Every court, it is believed, has inherent power to correct mistakes, irregularities or omissions due to its inadvertence or the neglect or carelessness of its officers, whenever it is in furtherance of justice and the rights of third parties are not affected thereby. Each case, however, must to some extent be left to the sound judgment of the court, as says Lord Kenton in King v. Mayor, etc. (7 T. R., 699). The question is discussed and cases reviewed in note to Chichester v. Cande (3 Cow., 42). In Mechanics'' Bank v. Minthorne (19 J. R., 244) the satisfaction of a judgment was set aside and the damages reassessed, to correct a mistake made by the clerk in the computation of interest, the court saying: “We have no doubt of our power to set aside the satisfaction entered, as well where there is a clear mistake as in a case of fraud.” To the same effect is Lawrence v. Cornell (4 Johns. Ch., 545.) In Pettigrew v. Mayor, etc. (17 How., 493) it is said, “ a mutual and fundamental mistake of the very basis of the contract” on. which the judgment was recovered “ is ample ground for relief,” and no doubt of the power of the court was entertained. Levy v. Joyce (1 Bosw., 622) has some points of similarity to the one at bar. The mode in which relief from a judgment in case of mistake or excusable default may be obtained is in the discretion of the court. (McCall v. McCall, 54 N. Y., 541.) The powers of the court exist, over and beyond the Code, which will be exercised in proper cases. (Dinsmore v. Adams, 49 How., 238.) Totally defective judgments have often been amended nunc pro tuno, as to mistakes of officers of the court. (Neele v. Berryhill, 4 How., 16; Cook v. Whipple, 55 N. Y., 151, 166, and cases cited.) Matters which would have been inserted as a matter of course, if attention to them had been asked at the hearing, inay be corrected on motion. (Clark v. Hall, 7 Paige, 383.) In Kamp v. Kamp (59 N. Y., 215-220) Judges Allen and Grover say jurisdiction ends with a final judgment, “except * * * to correct any mistakes in the record, upon proper application made within a reasonable time.” The court by which a judgment is pronounced may correct or modify it. (N. Y. Ice Co. v. N. W. Ins. Co., 23 id., 357, 361.)

In the case of McLean v. Stewart (14 Hun. 472) the change made in the judgment was not justified by any evidence given upon the trial, nor did the judge make any mistake or omission in «respect to the facts and law found by him on such evidence when he decided the case. In that respect it is very different from the case in hand, where the judge certifies that he made a mistake in rendering his decision. But McLean v. Stewart recognizes Mechanics' Bank v. Minthorne (supra) as authority.

The courts have frequently held that the granting or refusing costs in equity cases will not be corrected, on motion, as a mistake, because if the judgment be wrong in that respect it is a judicial mistake and must be corrected, if at all, upon appeal. Of course no decision holds that a judicial mistake can be corrected by motion or petition before the same or another judge. The present is not a judicial mistake. Not being a judicial mistake it may be corrected by the inherent power possessed by the court, or, as I think, by the power conferred by sections 723, 724 of the Code of Civil Procedure. (Sec. 173 of Code of Pro.; Hotaling v. Marsh, 14 Abb., 161, 165.)

Upon a careful study of the cases we are of the opinion that the court possessed the power to make the amendment complained of, and that there is nothing in the facts presented for our consideration which would justify this court in interfering with the discretion so exercised.

We think the order should be affirmed, with ten dollars costs and printing disbursements.

Present — Learned, P. J\, Boardman and Bocees, JJ.

Order reversed, without costs.


author: Learned, P. J.: Bockes, J.

text:
    WILLIAM S. LOVELL, as Executor, etc., of ELIZA A. QUITMAN, Deceased, Appellant, v. VIRGINIA A. QUITMAN and Others, Respondents.

      Will — revocation of, by obliteration — 2 B. 8., 64, sec. 42.
    Under section 42 of 2 Kevised Statutes, 64, neither a will nor any part thereof can be revoked by obliteration unless the whole will be revoked or destroyed (Bocees, J., dissenting.)
    Appeal from a decree of the surrogate of Ulster county admitting a will to probate.

      J. N. Fiero, for the appellant.

      8. L. Stébbins, for the respondents.
   Learned, P. J.:

This is an appeal from a decree of a surrogate admitting a will to probate. The appellant claims that in admitting the will to probate the surrogate ought to have rejected the second and fourth clauses on the ground that they had been obliterated by the testatrix.

The facts are as follows: The testatrix, Eliza A. Quitman, duly executed her will on the 27th of February, 1874. The will was complete and without erasure. It was kept in a- tin box in the vault of the National Ulster County Bank; the box containing also other papers of the testatrix. The box was kept locked. She had the key and was the only person who was known to have had access to the contents. Officers of the bank had access to the vault. She used to come and open the box two or three times a year. A few times she took the box away. The will was found in this box after her death, and the box was found locked and in the bank vault. When the will was taken from the box after her death it was discovered that the second and fourth clauses had been erased with a pen. They were partially obliterated, but not to such an extent that they could not be read. One was a bequest of $5,000 to two great nieces, the other affiequest of $1,000 to another grand niece. No proof was given as to the person who erased these clauses, except as a conclusion might be drawn from the fact of the access of the testatrix, and of no one else, to the contents of the box.

The question is, whether under our statute a part of a will may be revoked by the testator’s obliterating such part with the intent of revoking the same. The respondents insist that neither a will nor any part of it can be revoked by obliteration unless the whole will be obliterated or destroyed. Such appears to be the language of the Revised Statutes: “No will in writing * * * nor any part thereof shall be revoked or altered otherwise than by some other will, * * * unless such will be burnt, torn, canceled, obliterated or destroyed with the intent,” etc. (2 R. S., m. p. 64, § 42.) The revisers in their notes say that this is taken from the Revised Laws, “ somewhat varied so as to guard more effectually against frauds.”

This question was carefully examined in Quinn v. Quinn (1 N. Y. S. Ct. [T. & C.], 437), by the General Term of the second department, and was decided in the same manner as was held by the surrogate in the present case. The same view was expressed by the present surrogate of New York city In re Prescott (4 Redf., 178). Thus the matter has been settled in this court. There are several cases cited by the appellants and decided in this State. One is Johnson v. Holloway (7 Johns., 394), where the question did not arise, because the alterations were not made to revoke but to extend the gift. Another is Clark v. Smith (34 Barb., 140), where the question is expressly said not to be determined. The last is McPherson v. Clark (3 Bradf. 92). In this last the surrogate held that the obliterated parts were not revoked. Whatever, therefore, he said in regard to the question now presented was obiter. The case of Bigelow v. Gillott (123 Mass., 102), cited by appellants, arose on the statute of that State, which, in the language bearing on this point, differs from our own. That statute is: “No will shall be revoked, unless by burning, etc, * * * the same, with the intention, etc, * * * or by some other will,” etc. The only argument in that case is, that if the court were to hold that a part of a will could not be revoked by obliterating that part, they would be obliged to hold that the testator could not revoke a part by a codicil. We see no force in the argument whatever.

The language of our statute seems to be intended to remove all doubts. It says that no will, nor any part thereof, shall be revoked or altered “ unless such will ” — (not, unless such will, or such part), “ unless such will be burnt, torn, canceled, obliterated or destroyed with the intent,” etc. Thus the legislature say that no part of a will shall be revoked or altered, unless the will be destroyed, etc., with the intent, etc. The appellants urge that, upon this construction, the words, “ nor any part thereof,” are surplusage. It seems to me that these words have an important meaning. They state that not even a part of a will shall be revoked unless the will itself be destroyed; and they forbid the possible inference that a part might be revoked by destroying such part.

And it may here be noticed that if these clauses in the present will be regarded as revoked, such revocation must operate as a legacy to the residuary legatee named in the will; so that we should have a part of the will, viz., the residuary clause, altered in its effect when nothing has been done to that part of the will. This would seem to be contrary at least to the spirit of the statute above cited which forbids alteration as well as revocation.

The point in question has thus been adjudicated upon in this court as above stated. "W e think that the adjudication should be followed, and we consider it to be correct.

The decree of the surrogate is affirmed, with costs against appellants personally.

Bockes, J.

(dissenting):

I am unable to concur in the conclusions of my brothers Learned and Boardman. I think the obliterations were made by the testator animo revocandi, and that he might thus revoke the two clauses by obliteration, as wa.s done in this case. The statute seems to contemplate a revocation of a part or portion of a will in this manner. It declares that no will, u nor amy part thereof,” shall be revoked or altered otherwise, etc., unless “ burnt, torn, canceled, obliterated or destroyed with intent, etc,” implying very manifestly that a part may be revoked by obliteration. To hold otherwise leaves the words nor any part thereof ” entirely meaningless. Such a construction of the statute should not be permitted save from necessity. I prefer to go with the cases which hold that a single independent clause of a will may be revoked by obliteration when coupled with no intent otherwise to alter the instrument.

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

Order affirmed, with costs against the appellant personally.


text:
    MARY JANE BROOKS, Respondent, v. DAVID B. ST. JOHN, Appellant.

      False return by a justice of the peace — what damages may be recovered in an action brought for.

    The plaintiff herein appealed from a judgment recovered against her in an action brought by one Pope, before the defendant, a justice of the peace. Owing to the falsity of the return made by the defendant the appeal was heard on the law and not on the facts as desired by the plaintiff, and the judgment of the justice affirmed.
    In this action brought by her to recover .the damages sustained by her by reason of the false return, the judge charged that she was entitled to recover the costs paid in the County Court and the reasonable and proper expense she was put to in applying for the new trial.

      Held, that the charge was sufficiently favorable to the defendant.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.
    This action was brought by the plaintiff to recover damages for a false return made by the defendant, a justice of the peace of the town of Edmeston, in Otsego county, on an appeal from a judgment for forty-nine dollars and ninety-five cents damages and costs rendered by him in a civil action, wherein Charles H. Pope was plaintiff, and this plaintiff, Mary Jane Brooks, was defendant. The original pleadings were not returned by the justice, but alleged copies were set out in the return. The returns were false in that they omitted the judgment clause of the answer used in the suit between Charles H. Pope and Mary Jane Brooks, wherein Mary Jane Brooks, the defendant, claimed judgment against the said Charles H. Pope for seventy-five dollars, besides costs. The County Court held that it not appearing from the return that the defendant claimed judgment for fifty dollars or over, tbat the appeal could not be considered one for a new trial and that the judgment of the court below should be affirmed with costs. On the trial of this action the court ruled, under objection and exception, that if the return was false, plaintiff was entitled to recover the costs paid in the County Court and the reasonable and proper expenses she was put to in endeavoring to obtain a new trial.

      O. F. Matterson and Jmnes A. Lynes, for the appellant.

      Walter H. Bunn, for the respondent.
   Learned, P. J.:

One Pope sued the plaintiff, Brooks, before the defendant, St. John, a justice of the peace, and recovered. She appealed; The return made by the justice, as the jury have found, was false, By reason of the falsity of the return the appeal was heard on the law and not on the facts. And the present plaintiff Brooks, who-had no question of law to present, but desired to have a new trial, had judgment against her of affirmance, with costs. She now sues-the justice for the damages occasioned by the false return. The judge charged that she was entitled to recover the costs paid in the-County Court, and the reasonable and proper expenses she was put to to obtain a new trial, of which she was deprived by the false return. The defendant appeals and insists*that this rule of damages-was too favorable to the plaintiff. He urges that she must show that she would have succeeded if she had had a new trial.

' The defendant relies on Millard v. Jenkins (9 Wend., 298.) As-that case is often cited on questions like the present, it is well to-remark that the court held that there was no false return. Therefore the question of what damages would have been recoverable, if there had been a false return, did not arise. A ground of complaint was said to remain for an alteration of the justice’s docket. As to-this the court say that no fraudulent intent was alleged. It is true that, after deciding that there was no false return, the court speak of the measure of damages. But that was not involved, if in fact no false return had been made.

In MacDonnell v. Buffum (31 How., 158) a justice of the peace ■was sued for having made a false return, in falsely returning that •certain proof was not offered on the trial before him, or objected to or excluded. The judgment before the justice was affirmed by the General Term. In the action against the justice the rule of damages was the amount of the recovery which had been had against the plaintiff in the General Term and the amount for which he was liable to his attorney. That decision is in harmony with the charge in this case, as respects the expenses of the plaintiff.

So in Rector v. Clark (78 N. Y., 29), it is said that the plaintiffs “ sustained damages at least to the amount which he recovered, being for costs and expenses actually paid.” That is substantially the rule adopted here. Of course, if the plaintiff had had a new trial in the County Court she might have defeated the plaintiff in that action altogether, or she might have established her alleged counter-claim. On the other hand, she might have been unsuccessful there. The difficulty is that it is impossible for the jury, on this trial, to decide what would have been the result of a retrial of the former action in the County Court. That would have depended partly on the success of the parties in obtaining their witnesses and partly on the view the jury might have taken of the case. If, on the trial of the present action, the parties had attempted to retry the •case of Pope v. Brooks in order to ascertain the damages sustained by the false return, witnesses might be dead or absent who were living or at hand, at the time when the retrial would have been had. And this defendant also might claim that he could not successfully litigate a controversy which arose between Pope and Brooks, and to which he was not a party.

We are satisfied that the defendant has no reason to complain of the rule of damages. Whether larger damages might not have been recovered, we do not inquire. In MacDonnell v. Buffum it may be noticed that the false return affected a question of law. And the effect of the false return was to prevent a reversal, which would have otherwise been granted as a matter of law. On that ground the plaintiff recovered as damages the whole amount of the judgment rendered against him.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Osborn and Kumsey, JJ.

Judgment affirmed, with costs.


author: Rumsey, J.:

text:
    ELIZA MITCHELL, Respondent, v. LORENZO ALLEN and ALVIN PORTER, Appellants, Impleaded, etc.

      When the discharge of one of several joint tort-feasors operates as- a release of the others — Supplemental answer — the fact that the allegations contained in it do not constitute a defense, is not usually a ground for denying a motion for leave to serve it.

    After the joinder of issue, in an action brought against three defendants to. recover damages for an injury caused by their negligence, the plaintiff entered into an unsealed written agreement with one of them whereby, in consideration of certain money paid by him, the plaintiff stipulated to discontinue the action as to him and release him from all claims of every kind which the plaintiff had against him, but provided expressly that the stipulation should in no wise affect the other two defendants, and that the plaintiff should retain all his claims against them as if the stipulation had not been made.

      Held, that the discharge of the defendant under this agreement operated to release the other two from all liability, and that they should be allowed to serve a supplemental answer setting forth the foregoing facts.
    It is not customary for the court to deny an application for leave to serve a supplemental answer upon the "ground that the facts sought to be set forth therein do not constitute a defense to the action.
    Appeal from orders made at a Special Term denying motions for leave to serve a supplemental answer.

      M. M. Waters, for the appellants.

      B. II. Duel, for the respondent.
   Rumsey, J.:

X These are appeals by the defendants Allen and Porter, separately, ’ from orders made at the Cortland Special Term, denying to those defendants leave to serve a supplemental answer. *

The orders recite that the defendants have made a case entitling them to serve the supplemental answer proposed, but denies the leave because the facts stated in it do not constitute a defense. Ordinarily where the facts appearing on such a motion show that the party is entitled to serve his supplemental pleading, he ought to be permitted to do so, unless the pleading is clearly bad or frivolous, leaving the other party to demur to the pleading or take advantage of its insufficiency on the trial. y¥e were strongly inclined to reverse the orders on that theory, but as the sufficiency of the answers has been fully argued we will consider it. The action was brought against Markham, Allen and Porter to recover damages for their negligence by which plaintiff was injured. Allen and Porter answered separately. After the action was at issue, plaintiff made a stipulation in the action, not under seal, reciting the pendency of the action, and of another action brought by plaintiff’s husband and proceeding thus : “ It is hereby stipulated in consideration of $285 received of Hiram Markham, the above actions are hereby discontinued as far as the defendant Hiram Markham is concerned, and the said Hiram Markham is hereby released from all claims of every name and nature which said above-named plaintiff * * * has against him, but this stipulation is in no wise to affect the defendants Lorenzo Allen and Alvin Porter, and the said * * * Eliza Mitchel retains all claims against said Allen and Porter, defendants, the same as if this stipulation had not been made.”

The defendants, Allen and Porter, desire by their supplemental answers to set up this stipulation, claiming that it is an accord and satisfaction as to Markham of the joint tort, and operates to release them notwithstanding the proviso. The court at Special Term held that these facts did not constitute a defense, and for that reason only denied the motions.

The plaintiff insists to support this order that the stipulation, not being under seal, is not a technical release, and therefore does not operate to discharge the other defendants, and that, regarded simply as a contract between Markham and the plaintiff, the intention of the contracting parties not to discharge the other defendants is clear, and the court must give effect to it. To sustain this claim, he cites Matthews v. Chicopee Manufacturing Company (3 Robt., 711). The report in that case is meagre, and neither the nature of the action nor the contents of the release are stated.

The decision is put on the authority of Price v. Barker (1 Jurist [N. S.], 775), the judge holding, as was held in that case, that to carry out the intention of the [parties he would construe the release as a covenant not to sue the parties named in it, and would give it no further effect. It is unnecessary to say whether we approve of the case or not, for we do not regard it as in point. The case of Price v. Barker {supra) arose upon a contract by the obligee of a joint and several bond not to sue one of the obligors, reserving his rights against the others. We need not further consider it.

In Irvine v. Milbank (15 Abb. [N. S.], 378; S. C., 56 N. Y., 635) the point decided was simply that the paper in question then was only an acknowledgment by a judgment creditor of the receipt from one of several judgment debtors of a portion of the judgment, and that the other judgment debtors were not discharged.

This stipulation not being under seal cannot operate as a release, but it acknowledges a payment from Markham for which it releases him from further claim of the plaintiff. So far as he is concerned the stipulation was an accord and satisfaction for the tort. ( Vedder v. Vedder, 1 Denio, 257.) There is no doubt that the plaintiff is entitled to but one satisfaction for her injury. {Lovejoy v. Murray, 3 Wall., 17; Knickerbacker v. Colver, 8 Cow., 111.) It is not necessary that this satisfaction be by way of a judgment {Gunther v. Lee, 45 Md., 60; 24 Am., 504; Barrett v. Third Ave. R. R. Co., 45 N. Y., 628-635, per Allen, J.); and satisfaction from one party discharges the others. {Knickerbacker v. Colver, supra.)

The plaintiff, not seriously denying all this, insists that her discharge of Markham arises solely out of her contract, and can extend no further than the express provision of the contract will permit. But while Markham was discharged from his liability by the contract, the discharge of Allen and Porter arises as a necessary legal result from the satisfaction by and discharge of their joint tort-feasor.

When Markham was discharged, the action as to them was barred as matter of law, and no contract between plaintiff and Markham can prevent the legal effect of his satisfaction. This precise proposition is decided by the Court of Appeals of Virginia in Ruble v. Turner (2 Hen. & Munf., 38). In that case it appeared that the plaintiff having sued three for a joint assault and battery upon him, afterwards and pending the suit made a stipulation in the action, not under seal, acknowledging from one defendant a consideration for which he released him. The stipulation continued, provided this shall not be considered as any satisfaction in favor of” the other defendants. The court held that the satisfaction was a discharge of liability and barred the action against all by necessary intendment of law, and that the proviso was void.

The case was cited to the same point by Allen, J., in Barrett’s case (45 N. Y., 635). In Gunther v. Lee (supra) the release was under seal, but it contained a proviso similar to the one quoted above which the court held to be void as inconsistent with the legal effect of the release. Ruble v. Turner is cited and followed.

It follows that the discharge of Markham operated to release the liability of Allen and Porter, and the supplemental answer contained a defense and should have been allowed.

The orders must be reversed, with ten dollars costs of this appeal and disbursements for printing to each appellant, and leave granted to defendants to serve supplemental answer on payment of costs of action to time of motion, and ten dollars costs of motion with leave to plaintiff to discontinue in twenty days in case supplemental answers are served.

Learned, P. J., and Osborn, J., concurred.

So ordered.


author: XJdmsey, J.:

text:
    In the Matter of ISADORE BAYARD.

      Constitution — cruel and inhuman punishment — an act inflicting a greater punishment for an offense when committed in one pond of the Slate than when committed in another is not unconstitutional.

    There is no provision oí the constitution which forbids the legislature to pass a local act fixing the punishment for crime. Therefore, although the legislature has established a general maximum of punishment throughout the State for a crime, it may change or increase the punishment as to particular localities.
    Section 29 of chapter 456 of 1880, providing that a person convicted before the recorder of Cohoes of petit larceny, as a first offense, shall be punished by a fine not exceeding $250, or by imprisonment in the Albany Penitentiary at hard labor for a term not exceeding one year, or by both, is not rendered unconstitutional and void, as inflicting a cruel and unusual punishment, by the fact that in other parts of the State petit larceny, as a first offense, is punished only by a fine not exceeding $100 or by imprisonment not exceeding six months, or by both.

      Semble, that that portion of the act is not of a local or private, but of a public nature.

      Appeal by tbe people from an order made at Special Term, discharging the respondent Bayard from imprisonment upon the return to a writ of habeas corpus.

      JD. Cady Herrick, district attorney, for the people.
    ■ A. E. Valois, for Bayard.
   XJdmsey, J.:

In 1879 the legislature conferred on Courts of Special Sessions exclusive jurisdiction, among other things, to try charges of petit larceny not charged as a second offense.

The recorder of the city of Cohoes was vested with all the powers of Courts of Special Sessions. In 1880 the legislature passed an act by which, among other things, it was provided that when any person is brought before said recorder charged with “ petit larceny, first offense, * * * such recorder shall, upon conviction of such offender, have power to punish by a fine not exceeding two hundred and fifty dollars, or by imprisonment in the Albany Penitentiary at hard labor for a term not exceeding one year, or by both such fine and imprisonment.” (Laws of 1880, chap. 456, § 29.) By the general law the punishment for petit larceny, first offense, in other parts of the State is imprisonment for six months or by fine not exceeding $100, or both. Such being the law Bayard was tried and convicted before the recorder of Cohoes for petit larceny and sentenced to be imprisoned for one year. He sued out his writ of habeas corpus before a justice of this court, and upon the hearing after return, was discharged. This appeal is brought to review the order discharging him. The learned justice held that the law of 1880 above quoted was unconstitutional and that it gave no jurisdiction to the recorder of Cohoes to sentence for one year for petit larceny committed in that city, while the punishment for the same offense elsewhere in the State was but half so great.

It may be premised that the courts are at liberty to declare a statute unconstitutional only when it conflicts with some express provision or limitation of the Constitution. They ought not to, nor can they declare a law invalid because, in their judgment, it conflicts with the spirit supposed to pervade the Constitution, but not expressed in words. When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation.” (Matter of N. Y. Elevated R. R. Co., 70 N. Y., 327, 342; People v. Albertson, 55 id., 50, 54; People v. Comstock, 78 id., 356.) Judge Cooley has so fully and accurately laid down the law on this subject that it is necessary only to refer to his learned work to ascertain the extent of the duty, and therefore of the right, of the courts to declare an act of the legislature to be void. (Cooley Const. Lim.,; 159, 171, 174.)

Whether or not this is a local act we do not think important in this connection. The Constitution has forbidden the legislature to pass private or local bills in certain eases, but in all other cases the ■law-making power is unrestrained in that regard. There is authority for saying that this portion of the law under consideration is not local or private, but public. (Williams v. People, 24 N. Y., 405, 407; State v. Co. Comrs., 29 Md., 516.) But we do not think it necessary to decide that question.

Is the punishment of petit larceny in the city of Cohoes by imprisonment for one year, when outside of that city it is punish.able but by six months’ imprisonment, a cruel and unusual .punishment, so that the law authorizing it is invalid ?

The learned justice who made the order under consideration thought that as petit larceny was punished generally throughout the State by imprisonment for six months only, it was cruel and unusual to increase the punishment for that offense when committed within the city of Cohoes.

We first find the injunction against cruel and unusual punishment in the Declaration of Bights, presented by the convention to William and Mary before settling the crown upon them in 1688. That declaration recites the crimes and errors which had made the revolution necessary. These recitals consist of the acts only of the former king and the judges appointed by him, and one of them was that “ illegal and cruel punishment had been inflicted.” (Stephen’s English Const., 44.) The punishments complained of were the pillories, slittings and mutilations which the corrupt judges of King James had inflicted without warrant of law, and the declaration was aimed at the acts of the executive, for the judges appointed by liim, and removable at pleasure, were practically part of the executive. It clearly did not then refer to the degree of punishment, for the criminal law of England was at that time disgraced by .the infliction of the very gravest punishment for slight offenses, even petit larceny then being punishable with death. But the declaration was intended to forbid the imposition of punishment of a' kind not known to the law, or not warranted by the law.

The courts have rarely had occasion to construe the meaning of the phrase cruel and unusual punishment.” And since no punishment can be inflicted until authorized by the legislature, which is. often elected, and represents the general moral idea of the people, it is not likely that they will often be called on to construe it. The text writers, however, have discussed it to some extent, and they seem to understand it as prohibiting any cruel or degrading punishment not known to the common law, and probably, also, those-degrading punishments which, in any State, had become obsolete when its existing Constitution was adopted, and punishments so disproportioned to the offense as to shock the sense of the community. (Cooley Const. Lim., 329; Story on Const. Law, § 1903; Cooley Prin. Const. Law, 296; Ho Ah Kow v. Nunan, 18 Am. L. Reg. [N. S.], 676.) Giving the clause this broad meaning, it will yet not be broad enough to forbid the passage of the law under consideration.

The punishment authorized by this law was the ordinary kind of punishment for all minor offenses, and it cannot fairly be said to be either cruel or unusual, unless we are prepared to say that the legisture, having established a general maximum of punishment throughout the State, cannot increase or change it, as to particular localities, to meet especial emergencies. That the law-making power can fix the punishment for crime and determine its severity cannot be denied. (Commonwealth v. Hitchings, 5 Gray, 482-486; Cooley Prin. of Const. Law, 296.) There is no constitutional provision which limits the power of the legislature in criminal any more than in civil cases. In each the rules are the same, and if we wish to limit either we must find the right in the Constitution or we cannot find it at all. Many cases can be imagined where especial circumstances make it advisable that some act done in a particular locality shall be declared a crime, or that it shall be necessary to prevent in that place the commission of some peculiar crime. Of this necessity the legislature must be the sole arbiter.

We find in practice that many acts are crimes and punishable if done in one part of the State, which are innocent if done in another. We can see no difference in principle between the act in question and the large number of laws of the kind mentioned above. It may well be that the state of affairs in Cohoes vdien this act was passed was such as to require stringent regulations for the prevention of petty crimes. If it were so, it was for the legislature to decide and, having decided, to act accordingly. If the law applied to all persons in that locality we do not think it violates the Constitution. (Cooley Const. Lim., 390.)

The reasoning of Judge Denio in Williams v. People (24 N. Y., 405, 407, 408) is authority in favor of the validity of the law in question, and as the report shows that all the judges except Sutherland, J., concurred in his opinion the reasoning has almost the weight of an express decision, although the court did not pass upon the question.'

We do not consider the expediency or propriety of this act. That is of no importance to our decision. Laws may be inexpedient, oppressive, even cruel, but unless they infringe upon some constitutional restrictions the remedy is with the electors and not with the courts.

The order discharging the prisoner must be reversed and the prisoner remanded.

Learned, P. J., concurred.

Osborn, J., dissented on the opinion of Westbrook, J.,’ at Special Term.

Order reversed and prisoner remanded.


text:
    JOHN ALAMANGO, alias DENNIS SHULTZ, Appellant, v. THE BOARD OF SUPERVISORS OF ALBANY COUNTY AND THE MAYOR AND RECORDER OF THE CITY OF ALBANY, Respondents.

      Negligence — public officers managing a penitentiary a/re not liable to a convict for injuries arising from the negligence of their servants.

    The complaint herein alleged that the defendants were authorized and directed by an act of the legislature, to establish a penitentiary in the county of Albany for the punishment of persons convicted of crimes and misdemeanors in that county; that they established the Albany penitentiary and appointed the proper officers to manage and superintend it; that in August, 1879, the plaintiff, who had been sentenced to and was then confined therein, was illegally put to work and compelled to approach a circular saw; that in so doing his hand was caught by the saw and cut off; that the injury was occasioned by the illegal and negligent acts of the defendants in compelling him to approach the saw, and in not providing proper means for the execution of the business of the institution.

      Held, that a demurrer interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, should be sustained..
    Appeal from a judgment, entered upon an order sustaining a demurrer to the complaint.

      B. R. Heyward, for the appellant.

      R. W. Peckham, for the respondents.
   Rumsey, J.:

The conclusions of law in the complaint are admitted by the demurrer only so far as they are legitimate deductions from the facts. (Kinnier v. Kinnier, 45 N. Y., 535.) The facts alleged are shortly, that the defendants were by act of the legislature “ authorized and directed ” to establish a penitentiary in the county of Albany for the punishment of persons convicted of crimes and misdemeanors in that county; that they did so, and appointed the proper officers to manage and superintend it; that in August, 1819, plaintiff was sentenced to be confined therein; that he was illegally put to work; that while he was thus at work he was compelled to approach a circular saw to peform the duties thus illegally put upon him, and his hand was caught in it and cut off; that the injury was caused solely by the illegal and negligent acts of said defendants, their officers or agents,” in compelling plaintiff to approach the saw, and not providing proper means for the execution of the business of the institution. To this complaint defendants demurred, and, after argument, judgment was entered for the defendants on the demurrer. The plaintiff appeals. It must be conceded that the defendants, in building and managing the Albany penitentiary, were engaged in a public duty which concerned the administration of criminal justice, and that they were not a corporation but were a mere instrumentality selected by the State. (Lorillard v. Town of Monroe, 11 N. Y., 392; Brown v. People, 75 id., 441, 442.) The duty of punishing criminals is inherent in the Sovereign power. It may be committed to agencies selected for that purpose, but such agencies, while engaged in that duty, stand so far in the place of the State and exercise its political authority, and do not act in any private capacity. It is so in the laying out and maintaining of highways, the building of court-houses and school-houses as well as in the building of jails and places of detention. In the performance of all such duties it is settled by the unanimous agreement of the courts that these agencies are not liable for neglect or misfeasance unless the liability is especially imposed by statute.

It is not necessary to discuss the reason of this rule for there is no break in the long line of authorities by which it is established. (Russell v. Men of Devon, 2 Term, 667; Hill v. Boston, 122 Mass., 344, and cases cited; Hallenbeck v. Winnebago Co., 35 Am., 151; Kincaid v. Hardin Co., 36 id., 236; Woods v. Conway Co., 7 N. W. Reporter, 269; French v. Boston, 129 Mass., 392.)

There is a class of cases in which the municipal corporation has been held liable for its negligence.. Such are Bailey v. Mayor (3 Hill, 531) and Oliver v. Worcester (102 Mass., 489). But the liability in those cases was put upon the ground, now well established, that the corporation was doing an act for its own benefit and profit primarily in the management of a franchise voluntarily assumed, and was not in the discharge of a public duty. It is not averred in this complaint that the defendants received pecuniary profit from the work done in the penitentiary; and if it were we do not think that fact would aid the plaintiff. The liability is not put upon the ground of the profit which may incidentally arise, but upon the nature of the work done or of the undertaking as done for the private advantage or emolument of the municipal corporation. (See cases last above cited.) The case of Mersey Docks v. Gibbs (L. R., 1 H. L., 93) was put by the House of Lords on the ground that the legislature intended to impose upon the Mersey Hocks Company the same liability which attached at common law to •individual owners of similar works. {Hill v. Boston, 122 Mass., 368, Gray, Ch J.)

Upon careful consideration we are cleárly of opinion that the complaint does not state facts sufficient to constitute a cause of action and the judgment must be affirmed.

Osborn, J., concurred; Learned, P. J., not acting.

Judgment affirmed, with costs.


author: Rdmsey, J. :

text:
    HENRY FLANDERS, Respondent, v. HAMILTON GROFF, Appellant.

      Evidence — action for slander — right of the plaintiff to prow a pritr utterance of the same slander for which the action is brought.

    Upon the trial of an action for slander, the plaintiff may, to show malice, prove the utterance of the same slanderous words, for which the action is brought, by the defendant at a time prior to that set forth in the complaint, although an action has heretofore been brought for the utterance of the words so spoken, which has been discontinued upon a settlement made by the defendant.
    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.

      J. E. Dewey, for the appellant.

      Eugene E. Sheldon, for the respondent.
   Rdmsey, J. :

The plaintiff sued the defendant .for a slander. It was proved on the trial that on the 8th day of November, 1819, Groff said that Flanders had set on fire Groff’s barn. After that proof had been made, plaintiff, under objection proved that at the time of the burning of the barn in October, 1878, the defendant said that Flanders set it on fire. It appeared that Flanders had sued Groff for this speaking and that Groff had settled for it and the suit had been discontinued. The defendant took exception to this ruling, and its correctness is the principal question which he argues on this appeal.

The evidence of the former speaking was admitted solely to show malice and to furnish a basis for punitive damages, and the charge of the court carefully limited it to that purpose. In this State it is well settled that in such actions as this punitive damages may be given if a proper foundation is laid for them. It is also the law that to enable the jury to decide whether or not punitive damages shall be given, it is proper to show that the slander was uttered wantonly and with express malice. (Thorn v. Knapp, 42 N. Y.,. 478.) The fact that defendant after he had once been sued for this slander and had admitted its falsity, and his consequent liability for it by settling that suit, deliberately uttered it again, was strong evidence to warrant giving punitive damages if the jury thought proper to do so.

The defendant complains that if the evidence is allowed, the plaintiff will in fact be permitted to recover for the speaking of the words for which he has once been paid, and that he has no opportunity to know before the trial what evidence is to be given against him, and therefore he cannot fairly meet it. If this were a new question to be decided solely on principle, these considerations might have great weight, as they evidently did with Judge Bronson in Root v. Lowndes (6 Hill, 518). But we regard the question as settled in this State, at least, by authority which we are not at liberty to disregard. In Inman v. Foster (8 Wend., 602) Chief Justice Savage held the law to be that, in an action for slander, after the words counted upon had been proved, evidence might be given of the speaking of the same words at a period so long before the commencement of the first action that the cause of action upon them was barred by the statute of limitations. In that case the evidence was admitted solely to prove malice. The case in Wendell, although disapproved in Root v. Lowndes {supra), was followed in the case of Titus v. Sumner (44 N. Y., 266). We can see no difference in principle between those cases and the case in judgment.

The words barred by the statute were clearly evidence of malice^ and were admitted because they cannot be the subject of another action.

In this case plaintiff could not sue upon the words spoken in October because he had been paid, but they tended to prove malice. It makes no difference whether the words have ceased to be actionable because of the statute, or by reason of a release or of the settlement of a former suit for their speaking.

In Symmons v. Blake (1 Moody & R., 477) evidence was admitted of similar words spoken by defendant of plaintiff for which damages had been recovered. So long as the principle is established that words which cannot be the subject of another action are admissible to show malice, we do not see how the line can be drawn at words barred by the statute. The case of Frazier v. McCloskey (60 N. Y., 337) does not conflict with this view but sustains it. The evidence admitted in that case which was held erroneous was a repetition of the slanderous words uttered after the action was commenced, and the court put the ruling upon the ground that another action would lie for the speaking of those words.

"We have carefully examined the charge and we think it was not erroneous. The jury were told clearly and plainly that unless they found that the words were spoken as alleged in the complaint, their verdict must be for defendant; and they were also told that they should consider the words previously spoken only upon the question of damages. The instruction's were correct. What was said, as to exemplary damages was proper and left the question to the jury. If the defendant wanted other or further instructions he should have asked for them.

We have examined all the exceptions to rulings upon the admission of evidence and think none of them well taken.

The judgment should be affirmed, with costs.

Learned, P. J., and Osborn, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Respondent, to Acquire a Crossing over the NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Amendments to articles of association— Ghap. 135 of 1870 only applies to patent omissions — a change in the route of a raib'oad should he made under chap. 77 of 1876.
    Appeal from an order made at a Special Term appointing commissioners to fix and adjust the crossing of 'the railroad of the New York, Lake Erie and Western Railroad Company, by that of the New York, Lackawanna and Western Railway Company, in the town of Chemung.
    One ground of opposition, and the only ground argued by the appellants, was that the respondent the New York, Lackawanna and Western Railway Company had no right to construct its railroad in the county of Chemung. The facts bearing on this question are these: The respondent’s articles of association, filed August 26, 1880, named several counties through which its road was to pass, but did not name the county of Chemung. On the 12th of February, 1881, a meeting of the directors was held at which all were present. A resolution was then passed reciting the filing of the articles of association, and reciting that it had since been found that part of the line ought to be located in Pennsylvania, to do -which it was necessary to construct said railroad through the county of Chemung, and reciting that the articles of association were informal by reason of the omission to name the county of Chemung therein, and resolving that for the purpose of correcting the informality, supplying the omissio'ns and conforming with the laws, it was expedient to file-amended articles of association, and resolving that the articles be amended as follows. Then followed the articles as amended, being substantially like the original articles except that the county of Chemung is mentioned, This resolution was passed by a unanimous vote.
    Another resolution was passed unanimously, viz., that the directors make and file the amended certificate of incorporation ; and another that the directors and stockholders make and file an instrument, approving the amendments. This they accordingly did.
    The court at General Term said: “ The appellant insists that this action did not authorize the building of the line in Chemung county. The respondent insists that, followed by the filing of a map, etc., it did.
    It seems very probable, as the appellant urges, that the respondents did not understand the statute under which they should have acted. They evidently acted under chapter 135, Laws of 1870, which authorizes the filing of an amended certificate in the case of the omission of any matter required to be therein stated. Probably, though we need not decide the point, that statute is to enable companies to remedy patent omissions, that is, the omission of things which are required to be stated, and which being omitted make the certificate imperfect on its face.
    The present is, as it appears, a case where the company desired to change their route. It was hardly the case of an omission of anything from their articles, but it was a case where subsequent investigation made a change seem desirable. That is provided for by chapter 77, Laws of 1876, amending section 23 of the railroad act (ch. 140 of 1S50), by which two-thirds of the directors are authorized to change the route to a county adjoining a county named in the articles.
    But certainly the language of such a vote need not be formal, so long as the vote expresses the decision of the directors to change the route. In the present ease the resolution, while it includes much that was unnecessary under chapter 77 aforesaid, contains enough to show that the route was to be changed to' Ohernung county, for within the resolution are embraced the so-called amended articles, and these contain a statement that the road is to run through the county of Chemung. We think therefore that the resolution of February 12, 1881, was practically a vote of the directors locating the route in the county of Chemung.
    • After the passage of this resolution a survey and map certified were filed in the county of Chemung.

      Li. T. Turner, for the New York, Lackawana and Western Railroad Company.

      T>. S. Hobmson, for the New York, Lake Erie and Western Railroad Company.
   Opinion by

Learned, P. J.

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

Order affirmed, with ten dollars costs and printing disbursements.


author: Bookes, J.

text:
    HENRY M. STEARNS, Appellant, v. CHARLES L. ALLEN and Others, Respondents.

      Note given by trustees — when they are not liable upon it individually.

    Appeal from a judgment in favor of the defendants, entered upon a verdict directed at the circuit.
    The action was brought by the plaintiff against the defendants, personally, on a promissory note, of which the following is a copy: “ $125.00.
    “ On or before the 1st day of April, 1876, we promise to pay, as trustees of Corinth Lodge No. 683, F. and A. M., to D. Y. Sturdevan or bearer one hundred and twenty-five dollars, with interest payable annually. Note payable at N. W. Buckmaster’s store when due.

      “April 25, 1871.
    “CHAS. L. ALLEN.
    “N. W. BUCKMASTER.
    “M. OWENS.”
    The defendants in their answer set up the tact that the note in question was given by them as duly elected and acting trustees of Corinth Lodge No. 683 of Free and Accepted Masons, a corporation duly organized and empowered to transact such business, and that the}', as such trustees and officers, were duly authorized by the lodge to give said promissory note, and that the same was given for a debt of said lodge and accepted as its obligation, and that they received no part of the proceeds thereof and denied their liability thereon.
    Upon the trial the defendants were allowed, against the plaintiffs objection and exception, to prove the facts so set up. The court thereupon directed a verdict in their favor.
    The court at General Term said: “As I understand this case it presents the precise question considered and determined in Hood v. Hollenbeck (7 Hun, 362). The question was examined by me in that case with great care on the authorities, and I can only add that a reexamination of them confirms me in the conclusions there reached and declared. The question in very nearly the same form was again under examination in Whitford v. Laidler,

       decided at the last General Term in this department, where in a dissenting opinion I repeated to some extent my own views of the law on the point here before us for discussion, which views are in entire harmony with those expressed in Hood v. Hollenbeck. For myself I am satisfied that the latter case was well decided, as the law is settled by numerous decisions in this State. In Whitford v. LctMler I took occasion to say that the decisions in some of our sister States were not, as I thought, in harmony with those of our own State. Following the decision in Hood v. Hollenbeck, and the many decisions referred to in the opinion in that case, die judgment here ordered should be affirmed.
    Judgment affirmed, with costs.”

      A. Pond, for the appellant.

      J. W. Houghton, for the respondents.

        Ante, page 136.

   Opinion by

Bookes, J.

Learned, P. J., and Boardman, J., concurred in result.

Judgment affirmed, with costs.