text:
    Trustees of Union College, Resp’ts, v. Dennis Coughlin et al., as School Trustees, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Schools—Long island city—Parties.
    Where the school trustees in Long Island city contract for the lease of a school building, with the consent of the board of education, an action for the rent cannot be maintained upon such lease against such trustees, but must be brought against the board of education.
    Appeal from a judgment, entered upon the report of a referee.

      William IS. Stewart, for app’lts; Chanler, Maxwell & Philip, for resp’ts.
   Brown, P. J.

The plaintiffs have recovered a judgment against the defendants upon three separate causes of action: First, for unpaid rent upon a lease for a lot of land and buildings thereon used for school purposes; second, for the use and occupation of said premises for one year following the termination of said lease; and third, for damages for breach of a covenant in said lease whereby the lessees agreed to surrender the demised premises at the expiration of the term in as good condition as reasonable use and wear thereof would permit, damages by the elements excepted. The lease was under seal, and was executed by and between the plaintiffs and the defendants’ predecessors in office (the board of education of Long Island City consenting to the same), and bears date November 1, 1876, and was for the term of fifteen years, at an annual rent of $2,347, the lessees agreeing to pay taxes and water rates as they became due. On May 1,1877, by a further agreement, lessees, in consideration of the lessor making certain alterations in the building, agreed to pay sixty-six dollars additional rent for each year of the unexpired term.

The provisions of the charter of the city (chapter 461, Laws 1871) relating to public instruction therein are not very intelligible, and it is difficult to determine with entire satisfaction the powers of the several officers. It provides that each ward of the city shall be a school district and that there shall be elected therein three trustees, who hold office for three years, one of whom shall be elected each year. The mayor of the city is authorized to appoint a commissioner of public instruction in each ward, who served as school commissioners for their respective wards. The commissioners constitute the board of education for the city. The statute enumerates the powers of the board of education and of the school trustees. The board of education is declared to be»a corporation for the purposes of the act, with power to sue and to be sued ; but the title to all property of the schools, real and personal, is declared to be vested in the corporation of Long Island City. It is made the duty of the school trustees to manage and conduct the schools of their respective wards, and to make repairs, alterations, and additions in and to the school premises ; but they are forbidden, without the written authorization of the board of education, to expend more than $25 a month. Sections 13 and 14 of chapter 2, tit. 9, of the charter, are as follows :

“ Sec. 13. The board of education may authorize the erection of a new public school-house, upon the written application of a majority of the trustees for the ward. It shall be the duty of the board of education to decide finally upon every such application within thirty days after the same shall be presented to it.
“ Sec. 14. Upon a decision favorable to the establishment of a school or schools in any of the wards of said city, it shall be lawful for the school officers of said ward to proceed to organize one or more schools, such as may be authorized by the board of education, and procure a school house by purchasing or hiring the same ; * '* * and the expense of establishing and organizing any school, as above mentioned, shall be paid out of the revenues levied and raised pursuant to the provisions of this act.”

The testimony is that the demised premises had been used as a school by the city for many years prior to the date of the lease, and in April, 1876, the board of education appointed a committee to act with the trustees of the ward in reference to the improved school accommodations for the ward, and on May 28 the board adopted a resolution that the total annual rent for that ward should not exceed $3,000. Negotiations appear to have been had with the plaintiffs in reference to improving the school building, with the result that a resolution was finally unanimously adopted that the commissioner and trustees of the ward were empowered to complete the negotiations on the basis of ten per cent, upon the outlay to be made by plaintiffs, in addition to $1,400 annual rent then being paid for the buildings, and thereafter the lease in suit was executed.

In my judgment, this action cannot be maintained against the defendants. The case in this respect is not analogous to an action against school trustees under the general law. Such trustees are quasi corporations, and hold the title to all property of the district, and there is no other body that represents officially the school district which could be sued upon a claim against it. Moreover, the statute authorizes the school district meeting to vote a tax to pay judgments recovered against the trustees; and, in case the inhabitants neglect or refuse to vote such tax, provision is made whereby the trustees are empowered to levy it upon the district. Thus, plain provisions of law are made whereby payment of a judgment against school trustees can be enforced. But this is not so in the case before us. The city charter does not contemplate a meeting of the inhibitants of the ward for school purposes at all, and the residents of the ward have no duties or powers such as exist in the ordinary school district. No separate tax can be levied upon the wards, and there is no separate fund out of which the expenses of the ward schools are to be paid. The ward trustees have no power given them to raise any money whatever, and there is no provision of law whereby, by proceedings against them, payment of a judgment against them can be enforced. They are not declared to be a corporation, and are not vested with the title to any of the school property. The board of education is by the charter made the responsible body for all expenses of public instruction within the city. For educational purposes, it is declared to be a corporation, and is charged with the management and control of the schools. Its members are not servants or agents of the city, but public officers exercising such powers as are prescribed by statute, and the city is not liable for its acts. Ham v. Mayor, etc., of New York, 70 N. Y. 459. To it the ward trustees must annually report. It may remove the trustees from office, establish new schools, employ and discharge teachers, designate their duties and fix their salaries, furnish supplies for the schools and school buildings, and no expense in excess of $25 per month can be paid by the trustees without its written authorization. The money necessary to meet the expenses of public instruction in the city must be raised by the common council, upon the certificate of the board, by a tax on the property within the city. The amount necessary for each school is apportioned to it by the board, and no expenses can be paid by the ward trustees except upon the audit of the commissioner for such ward, and the money •can be drawn from the treasurer only upon drafts of the board, signed by its president and countersigned by the clerk and the commissioner for the ward for which the money is to be paid. These provisions show the controlling character of the board of education over all matters relating to public instruction within the city; and while I am inclined to the opinion that the contract sued upon was, with the assent of the board of education, properly made in the name of the ward trustees, I think it was in law, and must be treated as, the contract of the board ■of education. Certainly, that body was the only one against whom it could be enforced, and in an action upon the contract the board has a clear right to be heard. The whole responsibility, from the inception of the contract to the final payment of the rent, rests upon that body. But if an action can be sustained against the ward trustees, the right to a hearing would be denied to the board; and, as the judgment recovered against the trustees would be conclusive as to the plaintiffs’ right to recover, its payment might be enforced by mandamus, against •the board, and it would be denied a hearing upon all questions involved in the judgment. We are of the opinion that the ward trustees are officers charged solely with the duty of supervising the ward schools. They are a sort of an adjunct to the board of education. They have no independent power to contract, except as to small amounts, and are not ‘"liable to be sued for the expenses of the schools. All contracts in reference to the public instruction within the city, lawfully made, and debts and liabilities lawfully incurred, are the contracts, debts, and liabilities of the board of education, which body in its corporate capacity is liable therefor. Our conclusion is that this action should have been brought against the board of education, and that it cannot be maintained against the defendants. We therefore refrain from expressing any opinion upon the merits of the controversy. The judgment must be reversed, and the complaint dismissed.

Pratt, J., concurs; Dykman, J., not voting.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    The People, ex rel., Patrick J. Hughes, App’lts, v. Horatio S. Sanford et al., a Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, Second De artment,

      Filed July 26, 1895.)

    Municipal Corporation—Fireman—Disoharub—Proof.
    The evidence was held, in this case, to be insufficient to sustain a charge of neglect of duty against a fireman.

      Certiorari to review the determination of the board of fire commissioners of Long Island City, in adjudging relator guilty of neglect of duty and dismissing him from the fire department.

      Thomas P. Burke, for relator; William K Stewart, for resp’ts.
   Brown, P. J.

This proceeding is a certiorari to review the determination of the respondents dismissing the relator from the position of fireman in the fire department. The respondents were empowered to remove employes for “ incapacity, neglect of duty, or misconduct." The relator was charged with neglecting to feed or water horses left in his charge from nine o’clock p. m. on July 20, to 3:30 p. m. on July 21, 1893. It appears that at 12:30 a. m. July 21st, an alarm summoned the relator and his company to a large fire, and he was on duty there the balance of that night and part of the next day. The only witness called to substantiate the charge was Alexander Grady, the company’s foreman. He knew nothing of the matter himself, but testified that he believed the, charge was true. He swore to a conversation with Hughes, which, it was claimed, amounted to an admission of the charge of neglect. Hughes denied on the witness ptand that he admitted to Grady that the horses were not fed or watered until the afternoon of the 21st, and it appeared by uncontradicted evidence that they were fed about nine o’clock in the morning and were watered about eleven o’clock. The charge of neglect was not proved, and the commissioners were not authorized to dismiss the relator. The order must be reversed, and the relator restored to his position, with $50 costs.

All concur.


author: Dykman, J.

text:
    De Witt C. Bouker, Jr., App’lt, v. Long Island Railroad Company, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Cakribrs—Charges—Contract.
    Where an offer to carry freight at a certain rate is withdrawn before acceptance, no contract exists, and the amount paid in excess of that rate cannot be recovered as for breach of contract.
    Appeal from a judgment, reversing a judgment of a justice of the peace in favor of plaintiff.

      George Wallace, for app’lt; William J. Kelly, for resp’t
   Dykman, J.

This is an appeal from a judgment of the county court of Queens county, reversing a judgment in favor of plaintiff, after a trial before a justice of the peace, for $82.94. The action was brought for a breach of the contract. The facts are substantially undisputed. In October, 1893, the plaintiff requested the traffic manager of the defendant to give him rates for the transportation of broken stone from Long Island City to Y alley Stream and intermediate points, Hempstead, Far Rockawav, and stations between Pearsalls and Freeport, and the traffic manager submitted to him for his consideration, rates between those places at eighty cents per gross ton, and to stations east of Free-port, to and including Wantaugh, eighty-five cents per gross ton. There was no acceptance of this offer, and, without further communication between the parties, the traffic manager, on the 3d day of February, 1894, wrote the defendant a letter, in which he withdrew his offer in the following language:

“ 1 have to advise you that in future we shall require the prepayment of all charges on freight shipped for your account over our lines. I would also state that the rates quoted you Oct. 24th, to Valley Stream and intermediate points, to Hempstead, Ear Bockaway, and all stations between Pearsals and Wautaugh, have this day been canceled. I have as well made void the rate of fifty cents per ton on your stone to Bockaway Beach.”

That withdrawal was received by the plaintiff on or before February 7, 1894, On the 20th day of March, 1894, two months after the withdrawal of the offered rates, the plaintiff entered into a contract for building macadamized roads that required the transportation of stone to Hempstead, which was one of the points to which the rate of eighty cents had been quoted October 24th and withdrawn February 3d. In May the plaintiff brought car-toads of stone for Hempstead to the railroad, and insisted that they transport it at eighty cents. The traffic manager reiterated the withdrawal of the eighty cent rate and refused to carry for less than ninety cents. The plaintiff shipped the stone, and paid the freight at the rate of ninety cents, and this action is brought to recover back ten cents per ton on the May shipments to Hemp-stead.

As we have already stated, the plaintiff 2’ecovered in the court of the justice of the peace, and that judgment was reversed on appeal to the county court It is to be observed, in the first place, that there was no contract on the part of the defendant to cony the stone at eighty cents per ton. There was an offer to do so, which was not accepted, and which was withdrawn before the shipment of any of the stone for which the plaintiff paid the freight which he claims to recover in this action. As there was no contract in existence between the parties, it was the right of the defendant to charge the plaintiff the usual rates for the transportation of his stone ; and, as the freight was paid, that deprived the plaintiff of any cause of complaint. It cannot be claimed that the payment of the ninety cents was under duress, or was induced by fraud, or through mistake. There was no duress, for the plaintiff was under no obligation to ship the stone, or to place his-property in the possession of the defendant. The payment was voluntary in every proper sense of the term, and was made by the plaintiff with the full knowledge of all the facts. He knew,, before he commenced the shipment of the stone, the terms upon which they would be received and transported to Hempstead and other points. The railroad company claimed no lien on his property, and never refused to deliver the stone to him. Neither can it be said that this is an action for unjust discrimination. Neither the pleadings nor the proof make such a case.

The judgment of the county court should be affirmed, with costs.


text:
    Felix O’Hanlon et al., as Trustee, etc., App’lts, v. James Scott et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Schools—Collector—Bond—Sureties.
    The omission of a school collector to sign his official bond does not render it void as to his sureties.
    2. Same—Sureties’ remedies.
    The sureties’ right to recovery against the collector for the money which they are compelled to pay, is the same whether he signed, or did not sign, the bond.
    3. Judgment—Default—Sureties.
    The entry of a default judgment against part of the sureties, sued jointly, is a bar to the further prosecution of the other sureties, though entered in pursuance to an order permitting the continuance of the action, against them.
    4. Same—Opening default.
    But such judgment does not bar further action against one of such sureties, where 'the default is vacated as to him and he is allowed to answer.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      George P. Gordel, for pl’ffs; George J. Greenfield and W. Allaire ¡Shortt, for def’ts John Scott and Michael Cahill.
   Brown, P. J.

This action was brought by the plaintiffs, as trustees of a school district, upon an official bond of James Scott, Jr., the tax collector of said district, to recover money collected and misappropriated by him. The collector and two of his sureties failed to answer. "Upon the trial of the issues raised by the answers of the three other sureties, the court directed a verdict in favor of the defendants John Scott and John L. Feeney, and in favor of the plaintiffs, against the defendant Michael Cahill for the sum of $3,645.10. The plaintiffs and the defendant Cahill moved for a new trial upon the exceptions, and the court ordered the motion to be heard in the first instance at the general term.

Scott was elected collector on August 21,1891, and on.September 17th personally delivered the bond in suit to the plaintiffs, after its execution by the sureties. Although named as one of the obligors in the bond, he did not sign it. The statute requires the collector “to execute a bond to the trustees * * * conditioned for the due and faithful execution of the duties of his office ; ” and provides that the collector vacates his office by not executing a bond, and that the trustees may supply the vacancy. It is the claim of the defendants that, by reason of the failure of the Collector to sign the bond, they never became liable as sureties. The authorities cited to. sustain this contention are all decisions from other states. Some of them, like Bean v. Parker, 17 Mass, 591, which was the case of a bail bond; Wood v. Washburn, 2 Pick. 24, which was the case of an administrator’s bond ; and Fletcher v. Austin, 11 Vt. 497, which was the case of a failure of a cosurety to sign,—are plainly distinguished from the case before us. But the cases o'f City and County of Sacramento v. Dunlap, 14 Cal. 421, and People v. Hartley, 21 id. 585, and Bunn v. Jelmore, 70 Mo. 228, fairly sustain the defendant’s position. We are not disposed, however, to follow the rule applied, in these cases. The defense is the merest technicality possible, and is absolutely without any merit, so far as it has any relation to any of the rights of the parties. The statute provides that for the recovery of all balances in the hands of the collector which he shall neglect or refuse to pay to his successor, “ the trustees in their name of office shall have a remedy upon the official bond of the collector or any action and remedy given by law.” The defendant contend that, as no other action or remedy by law is given to the trustees, this provision restricts the remedies of the trustees against a defaulting collector to an action on bis official bond. Such a construction, we think, is too narrow and technical to be given to the statute. It should be liberally construed, and we are of the opinion that it grants to the trustees the right to pursue every remedy or action that exists for the collection of debts; that they may sue the collector for money received, entirely independent of his official bond, and that proceedings by attachment, injunction, and every other remedy which a creditor may have against his debtor, are available to the trustees. Under such a construction as to the rights of the trustees, it is apparent that the execution of the bond by the collector did not change in the slightest degree his relation to the trustees or to his sureties. The trustees might sue him either on the bond for money received and misappropriated, and the sureties’ rights to recover against him'for money they should be compelled to pay would be the same whether he signed the bond or not. The case is entirely different from one where one who had agreed to become a cosurety failed to sign the bond, as in such a case those who did sign would be deprived of their right of contribution against the one not signing. But no such result follows the failure of the collector to sign. His liability to the trustees is entirely outside of and independent of the bond, and, such being the fact, the case falls within the rule applied in Parker v. Bradley, 2 Hill, 584; Williams v. Marshall, 42 Barb. 524; Chouteau v. Suydam, 21 N. Y. 179; Mattoon v. Barnes, 112 Mass. 466; Trustees v. Sheik, 119 Ill. 579; State v. Bowman, 10 Ohio, 445. In all these cases it was held that the bond was binding upoq the sureties, although not signed by the principal. The requirement of the statute that the collector should execute the bond was not intended for the benefit of the sureties, but of the trustees; and, as the instrument expresses upon its face that it was given as security for the performance of thp collector’s duties, it was apparent to the sureties that the signature of the collector was, as to them, of no importance whatever. We are of the opinion, therefore, that the court properly ruled that the bond was binding upon the defendants.

It further appears that on November 26, 1892, judgment, for want of answer, was entered against James Scott, James Scott, Jr., and Michael Cahill, pursuant to an order of the special term, which order also granted leave to the plaintiffs Jio continue the action against the defendants Feeney and John Scott. Subsequently the default against Cahill was vacated, and he was permitted to serve an answer; the order providing, however, that the judgment entered on November 26th should stand as security. Scott, Feeney, and Cahill served answers, each pleading as a bar to the action the entry of the judgment against his cosurety. This defense was sustained as to John Scott and Feeney, but overruled as to Cahill. So far as Cahill is concerned, the ruling of the court is sustained by the case of Heckemann v. Young, 134 N. Y. 170; 45 St. Rep. 846, which in its facts was very similar to the case against this defendant. We are of the opinion that the ruling of the trial court that the entry of the judgment against the defaulting defendants was a bar to the further prosecution of the bond against Scott and Feeney was also correct. The plaintiffs do not dispute the rule that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. But the argument, as I understood it, is that this principle is not applicable to a case where the judgment pleaded as a bar was rendered against one joint debtor in an action brought against all the debtors. This precise question was decided adversely to the plaintiffs’ contention by the general term of the First department in National Broadway Bank v. Hilch, 66 Hun, 401; 50 St. Rep. 130. We have carefully considered the criticism of the learned counsel for the plaintiff upon that case, but do not feel at liberty to disregard it as an authority directly in point upon the question before us. The counsel’s argument that, the action having been commenced against all the joint debtors, and judgment having been entered against those who failed to answer, pursuant to an order of the court which permitted the plaintiffs to continue the action against the other debtors, the intent of the plaintiffs was thereby manifested not to release the answering defendants, or to abandon the claim against them, is not without force. But it fails to overcome, in my judgment, one of the grounds upon which the rule applied by the trial court is founded, and that is that the security of the contract became absorbed and merged in the higher security of the judgment. The joint liability on the contract is thereby severed and no further action can be founded on the original promise. Such appears to be the doctrine asserted in all the cases in which this principle has been applied. Olmstead v. Webster, 8 N. Y. 413; Peters v. Sanford, 1 Denio, 224; Pierce v. Kearney, 5 Hill, 82; Suydam v. Barber, 18 N. Y. 468. Although in all the cases I have examined the judgment pleaded as a bar was entered in a separate action against one joint debtor, the grounds of the decision have been asserted to rest on the fact that the joint contract sued on had been merged in the prior judgment, and no further action could thereby be maintained upon it. The rule is an extremely technical one, and in my judgment ought to be abolished. But the change must come from the legislature. If it can be modified in conformity with the appellants’ contention, such result must come from the court of appeals. We must adhere to it, and, in sustaining the ruling of the trial court, we give effect to what we deem to be the logical result of its application to the facts of this case.

We have examined the other questions raised by the exceptions and argued by the defendants, and are of the opinion that none of them are well taken. The amount of the recovery is sustained by the evidence, and there was no request made by the defendants to have that question submitted to the jury.

The motion must be denied, a judgment entered in accordance with the directions of the trial court, with costs to the plaintiffs against the defendant Cahill, and costs to the detendant Scott against the plaintiffs. '

All concur.


author: Gaynor, J.

text:
    Albert O. Bebee, Pl’ff, v. Richmond Light, Heat and Power Company et al., Def'ts.

      (Supreme Court, Richmond Special Term,

      Filed August 12, 1895.)

      1. Mortgage—Trustee—Foreclosure.
    A bondholder, secured by a mortgage, cannot foreclose on the ground of a refusal of the trustee to act, where the trustee is willing to foreclose upon certain security being given to him, to some of which he was entitled, and the bondholder treated his entire demand as illegal.
    2. Same—Delay of trustee.
    Nor is he entitled to foreclose merely because of the delay of the trustee, where no request to the trustee to foreclose has been made.
    3. Same—Chattel—After-acquired property.
    A chattel mortgage, purporting to cover all personalty to be thereafter acquired by the mortgagor, does not affect creditors of the mortgagor unless, after its acquisition and before they obtain a lien thereon, he gives the mortgagee a lien.

      4. Same—Priority—Notice.
    A chattel mortgage, covering both realty and personalty, though not filed, is a lien ou the personalty prior to that of a judgment of a creditor of the mortgagor, who had notice of it.
    5. Same—Corporation—Franchise.
    A corporation cannot, without statutory permission, mortgage its franchise.
    6. Same—Bonds—Over issue.
    An over issue of bonds, under section 18, chap. 611 of 1875, does not render the mortgage, given pursuant to the provisions of such section, void, but makes the directors liable for any damages resulting therefrom.
    7. Same—Assent of stockholders.
    The objection that the written assent of the stockholders, owning over two-thirds of the stock, to the giving of a mortgage by a corporation on its realty, as required by section 18, chap. 611 of 1875, was not obtained, can be interposed by any person interested in defeating the mortgage.
    8. Same.
    A resolution, adopted at a stockholders’ meeting by the vote of stockholders who own more than two-thirds of the stock and entered on the minutes and attested by the secretary, is a written assent within the statute.
    9. Same—Contract—Construction.
    The contract, in this case, was so construed as to require that certain b mds, transferred in payment of a subscription to corporate stocks, should be cancelled and not participate in the benefits of the mortgage by which they were secured.

      Action by Albert O’Beebe, against the Richmond Light, Heat ■& Power Company and others to foreclose a mortgage given on real and personal property and a corporate franchise by a business corporation organized under Laws of 1875, chap. 611.

      George A. Black, for pl’ff; Henry H. B. Stapler, George M. Van Hoesen, and Albert Beynaud, for def’ts.
   Gaynor, J.

On November 22d the plaintiff wrote to the Holland Trust Company, the mortgage trustee, that he owned a majority of the bonds, and that he desired “ to ask the proper court to foreclose and sell the property” ; and asked “ what action” the trustees would take. He added that he had attorneys familiar with the facts and ready to proceed, who would arrange for the trustee’s protection “in any manner that may be necessary.” This letter was not a request that the trustee foreclose, but rather the expression of a desire of the plaintiff to do so through his own attorneys. The trustee answered, on the same day, that before it ■could take any action it would have to be “ properly indemnified against costs and disbursements for bringing a suit,” that plaintiff would have to deposit his entire holding of bonds, and that when those conditions were complied with it would proceed. This was a statement that it would bring the action upon compliance with the conditions named. The plaintiff responded next day that the proposition he had made was that he foreclose the mortgage, thus removing any doubt as to that, if his first letter was susceptible of any. He added that he had never been required by trust companies to deposit bonds in order to “ secure their action in caring for the trust,” and that he would deposit the bonds with the court. He then added that “ the conditions you require before proceeding we understand to be a refusal on your part to act under the trust on the terms made Nov. 22.” The terms of this letter of November'22d, to which the plaintiff thus referred back, were that the plaintiff foreclose. There is not in these letters of the plaintiff a demand, or even a request, that the trustee bring an action of foreclosure, but the contrary suggestion that the plaintiff be allowed to do so upon arranging for the protection of the trustee. The trustee responded to the plaintiff’s second letter on November 23d, notifying the plaintiff that it was able and willing to bring the action forthwith, but that it had a right to the indemnity, which it again demanded. It said nothing in this final letter of the deposit of the bonds. The plaintiff made no response, but stood on his last letter, and brought this action to foreclose, making the trustee a defendant. By the terms of the trust mortgage the trustee had the right to demand indemnification against costs and disbursements before beginning the action. It demanded, in addition, that the plaintiff’s bonds be deposited, presumably with it. IE this meant a permanent deposit, it had no right to make it, but it did have the right to have the plaintiff submit his bonds for its inspection, to see that he was a bondholder. But in response the plaintiff coupled both demands, and treated both as illegal, and as amounting to a refusal by the trustee, not to bring the action, but to do as requested in his previous letter. The trustee, in its final letter, stood only upon the demand for indemnity. It was incumbent on the plaintiff to offer such indemnity. But he evidently did not want the trustee to bring the action, but wanted to bring it himself, and he never made an unequivocal request that the trustee bring it, but put and kept himself at cross-purposes with the trustee. He cannot maintain his position as plaintiff on the ground that the trustee refused to bring the action. Nor did the failure of the trustee to foreclose for so long a time after default of the bonds give a bondholder the right to bring an action to foreclose on the ground of abandonment or neglect of the trust. The relation between a mortgage trustee and the bondholders does not impose upon the trustee the duty in every case of a prompt foreclosure without any request from a bondholder. On the contrary, the relation is one principally of convenience to the bondholders, who are the real parties in interest, and the usual course is for the trustee to await a request from them to foreclose. In most cases a prompt foreclosure is neither desired by the bondholders, nor desirable for their interests. I therefore give judgment of foreclosure upon the prayer of the trustee, and not upon that of the plaintiff, and will adjust costs upon the presentation of the judgment. The court having jurisdiction of the case and the control of the trust, it is not vital upon whose motion it acts.

It remains to state how I have disposed of certain other questions, upon which depend the limits and extent of the judgment to be entered.

1. So far as the land covered by the mortgage is concerned, it is enough to say that it embraces everything which has become a part of it up to date.

2. So far as personal property is concerned, none will be covered by the decree, or sold thereunder, except that which existed when the mortgage was made. It purports to also cover all personal- property to be acquired by the mortgagor afterwards. This is to be regarded only as an executory agreement by the mortgagor to do what is competent and necessary to give a lien upon future property as it comes into existence. It has no force against subsequent liens by attachment and execution creditors or mortgagees, unless such lien be actually affected prior to their liens. Rochester Distilling Co. v. Rasey, 142 N. Y. 570; 60 St. Rep. 284. By the sale thereof under the Wiman execution on May 31, 1892, all of the personal property of the mortgagor went clear of the mortgage, except such as was in actual existence at the time it was given, for no lien was ever afterwards perfected by the mortgagor upon after-acquired personal property. The lien of the mortgage on the said chattel property covered by it, namely, that in existence when it was made, was prior to the lien under the Wiman judgment, even though the mortgage was not filed, for Wiman had notice of it. In respect of additions to the personal property by Wiman after he purchased under his judgment, and by his grantee, the Electric Power Company, of course the mortgage has no refererence to that at all, except such of it as by way of repairs, for instance, has become part and parcel of the original articles, and incapable of a separate identification.

3. The mortgage does not cover the franchise of the mortgagor corporation. It could not be mortgaged without statutory permission (Carpenter v. Black Hawk Co., 65 N. Y. 50), and no such permission is given by the statute under which the mortgagor company was organized (Laws 1875, chap. 611), or by any other.

4. By the common law, corporations may mortgage their property at will, the same as natural persons. Barry v. Exchange Co., 1 Sandf. Ch. 280; 2 Kent, Comm. 281. Restrictions in this respect, are statutory. Section 13 of the said act of 1875 (as amended by chapter 394 of the Laws of 1888) authorized companies formed thereunder to issue bonds and to mortgage their real estate in an amount not to exceed one-half of the entire corporate property. The mortgaging of personal property is not restricted. I do not find that the total of the bonds issued, which is the amount secured by this mortgage, exceeded one-half of the corporate property; but if it did, the mortgage would not be void either in whole or for the-excess. The said section does not contemplate that, but only that the directors shall be personally liable for any damages to bondholders or mortgage holders caused by such overissue, as it provides.

5. The said section also provides that no such mortgage (namely, on the realty, there being no restrictions or conditions in respect of personalty) shall be issued without the written assent of stockholders owning more than two-thirds of the stock shall have been first obtained. It has been suggested by the courts whether the objection that such assent was not "obtained may be taken except by the stockholders, for whose benefit the requirements is said to have been imposed ( Greenpoint Co. v. Whitin, 69 N. Y. 328; Paulding v. Steel Co., 94 id. 334; Bank v. Averell, 96 id. 473); but since the case of Lord v. Gas Co., 99 N. Y. 547, it must be deemed settled to the contrary, and that the objection may betaken by one interested in defeating the mortgage; for there being in that case no stockholders’ consent to mortgage the franchise (which the statute applicable to that company permitted to be mortgaged with its other property), but only a consent to mortgage its real and personal property, it was held, on the objection of the company and of its receiver, that the mortgage did not cover the franchise for lack of such consent. The objection by the receiver was-not and could not have been taken on behalf of the stockholders, unless it could be taken on behalf of the corporation. High Rec. § 313, etc.: Curtis v. Leavitt, 15 N. Y. 44. I have in mind the contrary decision of a learned judge since made (Market & Fulton Nat. Bank v. Jones, 7 Misc. Rep. 207; 58 St. Rep. 37), but of course I may not follow it. I see no actual distinction between a lack of the stockholders’ consent to mortgage the franchise, and a lack of such consent to mortgage the other property of a company. The fact that by the common law the one could not be mortgaged, while the other could, creates no such distinction under a statute providing that both may be mortgaged, but only upon the previous assent of two-thirds of the stockholders. But, anyhow, I think the resolution passed at the stockholders’ meeting by the vote of stockholders owning more than two-thirds of the stock- ■and entered upon the minutes and attested by the secretary, amounted to the “written assent” required. The main object of the statute was to prevent such mortgages being given without the assent of owners of more than two-thirds of the stock. Such assent is required to be in writing; and in this case it is in the form of a legal and binding resolution adopted by such stockholders, reduced to writing in the regular minute book, and legally attested, so that it is competent written evidence of the fact. The said act of 1875 did not require the assent to be filed, as was the case with companies formed under the business corporation act of 1848, and is now the case with all corporate business ■companies.

6. The $63,700 of bond secured by the present mortgage, which were delivered to the receiver of the Electric Power Company by Mr. Wiman, must be canceled. Wiman had subscribed for 2,480 ■shares of the stock of the Electric Power Company, of the par value of $248,000. By the agreement of November 15, 1892, he transferred all of the property of this mortgagor company (the Richmond Light, Heat and Power Co.), which he had purchased under his aforesaid execution sale, to the. Electric Power Company, in full payment for 908 shares of his said subscription to its stock; and the said company agreed to accept the whole or any part of the $150,000 of outstanding bonds of the said mortgagor company, secured by the mortgage now being foreclosed, in payment for an equal amount still due on the said subscription for stock, and cancel the said bonds as received. In this way the property so transferred by Wiman to the said Electric Power 'Company would be freed from the lien of the said mortgage to the •extent of the bonds so delivered up for cancellation. After the receiver was appointed, Wiman delived to him and he accepted under the said agreement $63,700 of such bonds. It was to the advantage of his trust that the receiver should receive them. By receiving them he reduced the lien of the mortgage that much, .according to the agreement, and that is all the advantage the agreement entitles him to. There is no principle of law or equity upon which he may now hold them uncaneelled, and share under them in the proceeds of the foreclosure.

Let findings be presented on notice in accordance with the views here expressed.


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    In the Matter of the Petition of Hubert O. Thompson, as Commissioner of Public Works.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Eminent domain—Grantee—Award.
    Where ah easement is acquired by the city of New York in land for aqueduct purposes, and the landowner subsequently conveys by quitclaim deed, without reservation of the claim for damages, the land to a second mortgagee, who thereupon satisfies his mortgage and pays the first mortgage, such grantee is entitled to damages for the absorption of a spring by the aqueduct improvement, and it is error to award the same to the administrators of the former owner.
    Appeal from an order, directing payment of an award to the landowner.

      Francis Larkin, for app’lt; James B. Lockwood, for resp’ts.
   Brown, P. J.

It is unnecessary to consider the question discussed by the appellant relating to the practice pursued in this proceeding. We assume that the final order confirming the report of the commissioners has been set aside so far as to permit the court to consider and determine the rights of the parties to the award in question. Chapter 490, Laws 1883, as amended by chapter 419, Laws 1888—the act under which the award was made—required claimants to present their claims to the commissioners within four years from the time the commissioners filed their oath of office. The oath of the commissioners was filed October 25, 1884. At that date the farm across which the aqueduct was to be constructed was owned by Hathan Culver, subject to two mortgages, one held by the Sing Sing Savings Bank for $1,199.50, and one by appelle Hiram Farrington for $3,500. The title to the property described in the petition vested in the city by force of the statute aforesaid upon the filing of the oath of the commissioners of appraisal. The city did not acquire a fee to the land, but, as Appears from the commissioners’ report, took a perpetual easement therein; and the land described in the petition consisted of a narrow strip running across the farm. The aqueduct was constructed about 200 feet below the surface of the ground, and there was no shaft upon the farm. On April 9, 1885, Culver conveyed the farm to Farrington by quitclaim deed. This conveyance was made to prevent a foreclosure of the mortgage held by Farrington, and may be assumed to have been in payment thereof. Ho reservation was made of any claim against the city. In September, 1885, Farrington filed a satisfaction of the mortgage held by him, and in,May, 1889, the savings bank mortgage was satisfied on the record. In Hovember, 1888, Culver died. The construction of the tunnel for the aqueduct was commenced in 1885, and work begun on the farm in question in the year 1886. It appears from the papers before us that Culver and Farrington both made claims for compensation before the commissioners. Culver’s appears to have been prior to June, 1885. It was for about $100, and was confined solely to damages done to the surface of the farm by the city’s engineers and surveyors while he was the owner. Farrington’s claim was made in 1886, and was for the destruction of springs of water upon the farm. These springs appeared upon the surface of the farm, some distance from the land taken by the city, and the evidence permitted the conclusion that the construction of the tunnel intercepted underground the flow of water thereto. In August, 1891, the commissioners made their report, in which they awarded $100 to Culver for damages to the farm while he was the owner, and $1,344 to Farrington for damages sustained by him. This latter sum has, by the order appealed from, been awarded to Culver’s administrators on the ground that the title to any claim against the city arising from construction of the aqueduct vested in Culver upon the riling of the oath of the commissioners of appraisal, and that by the subsequent satisfaction of Farrington’s mortgage his lien thereon was released, and his right thereto destroyed. We see no just ground to direct the payment of the award in question to the respondent. When the title to the land vested in the city, the right to any award to be made for injury to the farm was subject to the lien of the two mortgages then outstanding thereon. Farrington held, the second mortgage, and was equitably, entitled, if he did not receive the award ,himself, to have it applied to the payment of the mortgage held by the savings bank. While Culver owned the farm-, he was interested in having as large an award made as possible as its payment to the mortgagee would inure to his benefit by the reduction of bis indebtedness. When he conveyed the farm to Farrington in payment of Farrington’s mortgage, his interest in the prosecution of the claim against the city ceased, unless such claim was reserved to him. There is nothing in the case to show that it was reserved to him. It is hardly probable that Farrington, who had been compelled to take a conveyance of the farm in payment of his mortgage, would have surrendered his right to a substantial claim against the city. We cannot, at all events, infer that he did so, in the absence of all evidence on the subject. The deed for the farm reserved nothing to Culver, and it described the whole farm. Although without covenants, we think that, as title to a part of the land described ha[l passed to the city, it was the intention of the parties that the claim against the city,whatever it might be, stood in place of the land conveyed, and passed by assignment to Farrington on delivery of the deed. The subsequent acts of the parties justify this conclusion. Culv-er never asserted any claim before the commissioners for damages for the taking of the land, or for injury to the farm. He confined his claim to injuries inflicted to the trees and fences by the surveyors while he was owner and in possession, and his failure, to assert any other claim is quite significant as to his understanding to the effect of the conveyance to Farrington. On the other hand, as soon as the injury to the springs appeared, Farrington asserted his right to such damages. Culver was then alive, and his son was a tenant on the farm. While the form of injury was probably one not foreseen by either party, Culver never saw fit to claim for it or to question Farrington’s right to it. While it is true that the legal right to destroy the spring passed to the city with the acquisition of the title to the easement, and the legal title to the claim for compensation thereto vested in Culver, still we are of the opinion that, inasmuch as Culver’s title was subject to the lien of the mortgages, the rights of the parties are to be determined by equitable consideration, rather than by the application of strict rules of mw; and giving effect to the contemporary act of the parties, with reference to this claim, we can find nothing to indicate that it was the intention of either party that the claim against the city was to be reserved to { ulver. The tendency of all the testimony tends to the conclusion that it was to pass to Farrington in payment of his mortgage. The filing in the register’s office by Farrington of a satisfaction of the mortgage is not a fact of any significance. That was not done for Culver’s benefit. Farrington’s title as mortgagee had become merged in that under the deed. The mortgage was extinguished, and the debt paid. The execution and filing of the certificate of satisfaction was intended only to discharge an apparent, but not a real, incumbrance on the land. It has no relevancy to the question before the court. The respondents have no just claim to the award, and the order appealed from must be reversed, with costs, and the award directed to be raid to the appellent.


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    Ann Kenney, as Executrix, etc., App’lt, v. Livery Stable Keepers’ Association of Kings County, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Costs—Appeal—Justice’s judumemt.
    The amount of costs to be paid by the appellant to the justice’s clerk, at the time of serving the notice of appeal from a justice’s judgment, includes an allowance of twelve dollars, under section 3189 of the Code, to the party prevailing in a justice’s court in the city of Brooklyn.

      % Same—Reversal.
    In such case, if costs are awarded to appellant on appeal, he may include in the disbursements the twelve dollars paid by him to the justice under section 3129 of the Code.
    Appeal faom an order, denying a motion to dismiss an appeal from a judgment rendered by a justice of the peace.

      M J. Tinsdale, for app’lt; William J. Courtney, for resp’t.
   Brown, P. J.

The plaintiff recovered a judgment against the defendant, before a justice of thfe peace of the city of Brooklyn, for $200 damages and $14.60 costs. Of the costs $12 was recovered pursuant to section 3129 of the Code of Civil Procedure, which allows that sum to the prevailing party when a trial is had in a justice’s court of the city of Brooklyn. The defendant appealed from that judgment to the county court of Kings county, and on so doing paid to the justice $2.60 for the costs of the action, and $2 for making the return, but did not pay the sum of $12 allowed for additional costs as aforesaid. Section 3047 of the Code of Civil Procedure requires the appellant, at the time of serving the notice of appeal, to pay to the justice of the peace or his clerk the costs of the action; and it is the appellant’s contention that this requirement compelled the defendant, in order to perfect his appeal to the county court, to pay to the justice the full sum of $14.60. The term “costs” is defined by the Code (section 3074), and includes the allowance in question. In the section which provides for appeals to the county court no distinction is drawn between ordinary costs and those additional sums which may be recovered under section 3129. All these allowances are denominated “costs,” and we are of the opinion that, in order to perfect an appeal to the county court, all the costs included in the judgment must be paid by the appellant to the justice at the time-of serving the notice of appeal. Such is the rule which prevails in New York and Albany, under like provisions of law applicable to inferior courts in those counties. Sherwood v. Insurance Co., 12 Daly, 137; Schwemmer v. Stratton, 22 Supp. 523. Upon the argument it was contended that there was no way for the appellant to-recover the costs so paid in case he succeeded on his appeal; but section 3060 of the Code appears to be applicable to such a case, and, under that provision, costs and fees paid to the justice may be included in the disbursements on the appeal in case the appellant is awarded costs. We are of the opinion that the county court erred in denying the motion to dismiss the appeal, and the order appealed from must be reversed, with $10 costs and disbursements, and the appeal to the county court dismissed, with $10 costs.'

All concur. •


author: Pratt, J.

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    John Gray App’lt, v. Kaufman Dairy and Ice Cream Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Landlord and tenant—Surrender.
    Where the evidence, in an action for rents, is that the landlord, upon receiving the keys from the tenant, notified him that he did not accept a surrender of the premises and intended to hold him for the rent, but would rent the premises for his account, to which the tenant made no reply, the-question whether there was a surrender should be submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial.

      Miller & Miller, for app’lt; M. Linn Bruce, for resp’t.
   Pratt, J.

The only doubt .in my mind about the disposition of this case by the learned trial judge arises on plaintiff’s request “to go to the jury on the question whether there was a surrender as matter of fact.” The testimony tended to show that defendant sent plaintiff the keys of the premises about October 31, 1893, and that they were received by plaintiff November 2, 1893. On the next day, November 3, 1893, plaintiff wrote defendant that he did not accept the surrender ; that he intended to hold defendant forth e rent; and that he should rent the premises for defendant’s account, and hold for the damages that might be sustained. With this testimony before us. I do not see why the jury would not have been justified in finding, from defendant’s silence, that it assents to the terms thus prescribed, which were that plaintiff should let the premises for its account. Such a finding would have been warranted by the authority of Underhill v. Collins, 132 N. Y. 272; 43 St. Rep. 785. If the jury had so found, then, by the same authority, there would have been an implied agreement between the parties that plaintiff might relet the premises for defendant’s account; and that would have been sufficient to justify a finding that there was no acceptance of the surrender,—in other words, that there was no surrender. I have therefore, though with much hesitation, reached the conclusion that a new trial should be ordered, with costs of this appeal to the plaintiff if it shall be found that there was no surrender, and to the defendant if it shall be found that there was a surrender.

All concur.


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    Simeon B. Fanning, App’lt, v. International Seed Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Pleading—Complaint—Sale—Warranty.
    A complaint, in an action for breach of contract of sale, which alleges, that the defendant sold to the plaintiff potatoes, representing them to be a. new variety and enormous bearers, does not aver a warranty.
    Appeal from an interlocutory judgment, entered on a decision sustaining a demurrer to plaintiff’s amended complaint, on the ground that it does not state facts sufficient' to constitute a cause of action.

      D. W. Reeve, for app’lt; J. A. M Stephens, for res’pt.
   Pratt, J.

The defendant’s points state that plaintiff, in his complaint, attempted to set out a cause of action upon a contract wherein the defendant agreed to furnish to the plaintiff a new variety of potatoes for seed, that should be superior in quality, enormous yielders, unmixed, and that would be in great demand for seed in the year 1893, which contract defendant failed to perform. The clear comprehension of plaintiff’s purpose in-pleading would make it the duty of a judge at circuit to admit proof of the cause of action attempted to be set out, and to make such amendment in the pleadings as might be necessary to conform them to the proofs. But, upon demurrer, a pleading must be construed according to the allegations, and not according to an intention gathered ontside the language used. In the present case, the complaint alleges that'defendant sold potatoes “ representing that they were a new variety, enormous bearers,” etc. That is not an allegation that the potatoes were warranted to be a new variety, etc., nor that defendant agreed that they should be of a new variety, etc., or contracted to deliver potatoes of a new variety. Suppose plaintiff had known the potatoes were not in fact a new variety, and were not enormous bearers, etc., and yet had made the purchase. The allegation in the complaint might be true, but plaintiff would not have been deceived. It is true that proof, upon a trial, that a vendor represented goods to be of a particular kind or quality, may oftentimes enable a jury to see that the transaction was understood by the parties to be a warranty or a contract to deliver goods of a specific kind or quality, and render a verdict accordingly. But a representation is not necessarily, perhaps not usually, a warranty. Caveat emptor is the general rule. The allegations in the other branch of the complaint are equally loose. The plaintiff avers that he “purchased one-half the crop for one hundred and fifty dollars; ” but he does not allege that he paid the money under a mistake of fact, nor at all, nor that he has demanded its return.

The judgment appealed from must be affirmed, but without costs, with leave to plaintiff to serve amended complaint, on payment of costs, of the special term.


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    Arthur W. Sweezy, App’lt, v. Henry C. McBrair, Resp’t.

      (Supreme Court, General Term, Second, Department,

      Filed July 26, 1895.)

    Trade-mark—Injunction.
    A person who sells to a dentist a preparation, covered by a trade-mark, which can be used only by those in his occupation, cannot enjoin him from using it or advertising that he uses it, where, in the sale, no restrictions were placed upon its use.
    Appeal from a judgment, dismissing the complaint.

      Gilbert 0. Hulse, for app’lt; Vanamee, Watts & Vail, for resp’t.
   Pratt, J.

This is an appeal from a judgment, rendered at the Orange special term, dismissing the complaint. The action was brought to restrain the defendant from using and advertising a certain preparation, known as “ Hypodentine,” prepared by the plaintiff, as “a local anaesthetic for the painless extraction of teeth.” The plaintiff sold a, bottle of this mixture, and it came into the possession of the defendant, who advertised that he used the same in the extraction of teeth. Undoubtedly the word may have been a valid trade-mark, and if the defendant had made or advertised and exposed for sale a spurious article he might have been enjoined; but that is not this case. Here the defendant advertised that he used the genuine article, and it was sold by the plaintiff. Having purchased the genuine article from the plaintiff, he had a right to use it as he saw fit. When the plaintiff sold the article he did so without placing any restriction upon the purchaser, and we cannot see any just ground for preventing him either in using the article for the purpose for which it was made and sold or advertising it for that purpose. Again, it was an article that no one but a dentist could use, and the plaintiff must have inferred when he sold the article, that it was wanted for and was to be used by a dentist.

Judgment affirmed, with costs.


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    Charles Beardsley, Resp’t, v. George H. Cook, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Assignment—Equitable .
    The owner of a building, who accepts an order drawn by the contractor in favor of a material man, payable out of the contractor’s last payment, and subsequently, by the terms of the contract, completes the building at the contractor’s expense, has no right to make payments out of the final payment in advance of its becoming due and before he took the work out of the contractor’s hands, to the prejudice of the assignee.

      Appeal from a judgment entered on a verdict, directed by the •court in favor of plaintiff.

      Clapp & Mason, for app’lt; Safford A. Crummey, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon the verdict of the jury directed by the court at a circuit held in Dutchess county, December, 1894. Mr. Justice Gayxor pre.siding. At the close of the testimony, counsel for the defendant moved that a verdict be directed for the plaintiff, and fixed the damages at $313.08. Counsel for the plaintiff joined in the motion for a direction of a verdict for the plaintiff, but asked that the damages be fixed at $1,213. The verdict was directed for the plaintiff, and the damages were assessed At $1,213. From the judgment entered on this verdict the defendant appeals. From the fact that both parties moved that the court ■direct a verdict, the only question relates to the amount for which it ought to have been rendered. It is true that defendant made a motion to dismiss the complaint when plaintiff rested, but he ■took no exception to a denial of this motion, nor did he move for a new trial on the merits. It seems defendant made a contract with Davis & Fay to build a couple of houses. Davis & Fay made a contract with the plaintiff to furnish them with certain materials, and gave plaintiff an order on defendant for $1,175, which he accepted, payable out of the last payment upon his contract with Davis & Fay. Davis & Fay, relying on the order, ordered and received the material from plaintiff, aggregating $1,000. They failed to complete the contract in time, and it was taken off their hands by defendant, who finished the houses himself. This •time the balance due the plaintiff for materials was $1,000. By the fourth provision of the original contract, the owner was authorized to take the contract off the hands of Davis & Fay, upon giving three days’ notice, and complete it, at their expense. By the third provision of the supplemental contract of February 2, 1891, it was provided that, in case of the failure of the contractors to finish the houses agreed, the defendant might finish them himself, at their expense. The defepdant paid Davis & Fay $5,390.75 in all. The payments made were in various amounts, none of them in corresponding with the amounts provided in the contract. On the 18th day of February, 1891, the defendant had completed the sixth payment, and had paid $50 more than the total amount of the six payments. Thereafter he made the following payments: February 28th, $100; March 3d, $138,75; March 4th, $200; March 6th, $150; March 7th, $200; March 13th, $150; March 14th, $100. This left in his hands $990.25 of the final payment, no portion of which had then become due. His expenditures in completing the contract amounted to $677.17, and left a balance in his hands amounting to the sum of $313.08. With the proofs establishing without dispute these facts, the plaintiff rested. Thereupon the counsel for the defendant moved for a dismissal of the complaint, on the ground that the plaintiff had shown that there was no part of the payment of the contract that ever became due to the con-tractors, and that it was incumbent on him to show that that last payment, or some part of it, became due before he can recover ; “but, by their testimony, they show that the only amount of money remaining in the hands of the defendant is three hundred and thirteen dollars and eight cents ($813.08).” This motion was denied. The defendant did not take any exception to this ruling, but moved the court to direct a verdict for the plaintiff for the amount remaining in the hands of the defendant, $313.08; and plaintiff moved that damages be fixed at $1,000 and interest, which was done.

The rule of damages adopted by the court was the correct one. It restricted the plaintiff’s recovery to the value of the material furnished by him and put in the buildings of the defendant. The defenddant took possession of the buildings, and elected to complete the contract himself, as he lawfully might. When they were completed, he was entitled to charge, as against the last payment, the amount it cost him to complete the contract from the time he took it. This would have left in his hands $1,503.38. The accepted order was an assignment pro tanto of the final payment, and the right of the plaintiff to recover under upon it cannot be defeated by any act of the defendant. This right of the plaintiff was paramount 'to the right of Davis & Ray in the final payment, and to any right which could be acquired by any material man or creditor of Davis & Fay. It will be observed that all disputed payments made to Davis & Fay, sought to be charged to the last payment, were made before any final payment became due. Defendant cannot be permitted to defeat the right of the plaintiff to recover for materials furnished on the faith of his order, payments made in anticipation of the last payment becoming due. If he made such payments, it was upon his own risk. The order was an assignments pro tanto, and the defendant had no right to make payments in advance of their falling due, and before he took the work out of the contractor’s hands, to the prejudice of the plaintiff. It seems to follow that the rule laid down by the court of appeals in this case, reported in 143 N. Y. 143; 62 St. Rep. 144, is not applicable. It also plainly appears that, after deducting the costs to defendant of furnishing the contract, there was more than the amount of the order remaining of the contract price, which should have been credited to the last payment.

While there is no collusion or fraud charged or proved, I think ■under the circumstances, the defendant had no right to make advances to Davis & Fay to the prejudice of the plaintiff, and charge the same to the last payment under the contract. I therefore feel constrained to affirm the judgment, with costs. It is also to be noted that the payments were made without any certificate of the architect.

All concur.


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    The People ex rel. Kings County Gas and Illuminating Company, Resp’t, v. Charles H. Schieren, as Mayor, etc., et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Mandamus—When granted.
    Courts will not command an inferior tribunal, or a ministerial officer, to decide a question in a particular manner, when the duties which are required to be performed, are in their nature judicial. All acts, which depend upon the decision of a question of law or the ascertainment and determination of a fact, are considered judicial.

      2. Same.
    The city auditor will be compelled by mandamus to pass upon a bill, presented by a gas company for gas to supply a town annexed to the city, where, pursuant to the annexation act, money collected by taxation by the town to supply gas therein has been paid to the city treasurer.
    3. Same—City auditor.
    A court will not, on mandamus to compel a city auditor to audit a gas bill, direct that it be allowed at a certain amount, where the contract between the city and the company gives the city the right to deduct from the contract price when gas is not furnished as called for by the contract. “
    4. Same—Misjoinder.
    , It is improper, on mandamus to compel the auditor and comptroller to audit and approve a claim, to join the mayor and ask that he be required to sign a warrant therefor, though the charter provides that money shall be drawn from the city treasury ou warrants signed by the mayor and comptroller on vouchers examined and allowed by, the auditor approved by the comptroller.
    Appeal from an order, granting application for a mandamus to compel the mayor of the city of Brooklyn and others to pay claims for gas supplied by the relator to the town of New Utrecht, before its consolidation with city of Brooklyn.

      Alfred K. Mudge, for app’lts; William J. Kelly, for resp’t.
   Brown, P. J.

We have before us two appeals in proceedings entitled as above, both from orders directing that a peremptory mandamus issue to the auditor of the city of Brooklyn, commanding him to audit the claims presented by the relator at specified sums, and directing the mayor and comptroller of said city to approve said claims, and to draw and certify warrants for said sums upon the city treasurer. The claims are for gas furnished by the relator to the town of New Utrecht, pursuant to a contract made with the board of improvement of said town, and cover the two quarter years ending, respectively. June 80 and September 80, 1894. The town of New Utrecht was annexed to the city on July 1, 1894, and the money raised by taxation to defray the expense of supplying said town with gas for that year has been, pursuant to the provisions of said annexation act, paid over to the treasurer of said city, and is now in his possession. Laws 1894, chap. 451.

No question arises upon the papers before us as to the validity of the contract between the relator and the said board of improvement, nor is the fact denied that the gas was supplied pursuant to the provisions of said contract during the periods named in the relator's bills, and we are of the opinion that the facts clearly entitled the relator to have its claims examined and audited by the officers of the city.

The contention of the appellants that the relator should be left to pursue its remedy by action against the city is clearly unsound. I think that no action at law could be maintained against the city upon the contract itself. The fourth section of the annexation act provides that:

“ The city of Brooklyn shall not be or become personally liable to pay any debt of the town of New Utrecht or any part or body thereof, contracted or incurred prior to the time this act Shall take effect; nor shall any property within the limits of said city, as constituted prior to the passage of this act be taxed to pay any such debt, liability or obligation.”

So far as the bills before the court are concerned, the money to pay them has been collected' from the property of the town, and paid over to and is now in the possession of the treasurer of the city. The bills must be paid from that fund, and it is held by the treasurer as a - special trust. With reference to its disbursement, the appellants had ministerial duties only to perform, and it is incumbent upon them to ascertain and inform themselves as to the terms of the contract, and to execute it with reasonable diligence. To the enforcement of such duties the writ of mandamus is the proper remedy.

We are of the opinion, however, that the court erred in determining the amount at which the bills should be audited and paid. It is a settled rule, applicable to the remedy by mandamus, that courts will not command an inferior tribunal or a ministerial officer to decide a question in a particular manner, when the duties which are required to be performed are in their nature judicial, and all acts which depend upon the decision of a question of law or the ascertainment and determination of a fact are considered judicial. In People v. City of Troy, 78 N. Y. 38, the rule is stated as follows :

The office of the writ of mandamus is in general, to compel the perform anee’of mere ministerial acts prescribéd by law. It may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner. It is not, like a writ of error or appeal, a remedy for erroneous decisions. Judges of Oneida Common Pleas v. People, 18 Wend. 92-99, and cases cited. This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed, A subordinate body can be directed to act, ‘but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by Tnandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.” i

In Howland v. Eldridge, 43 N. Y. 457, a mandamus was issued, directing the defendants, who were assessors of the town of Springport, to make and swear to their affidavit that a majority of the taxpayers of said town, owning more than one-half of the taxable property therein assessed and appearing on the assessment roll, had duly assented in writing to the issuing of town bonds in aid of the construction of a railroad. This order was reversed in the court of appeals, Judge G-rover saying in his opinion that, however clearly it was made to appear to the court that the requisite consents had actually been obtained, a manda7nus would not be granted to compel the assessors to make such an affidavit; that the power was given to them to examine the evidence upon the question, and it was upon their conclusions that the power to bond the town depended, and not upon that of any other "tribunal; that consequently they could be compelled to proceed and determine the matter, but could not be compelled to decide in any particular way. To the same effect are numerous authorities: People v. Supervisors of New York, 1 Hill, 362; People, ex rel. Myers v. Barnes, 114 N. Y. 317; 22 St. Rep. 164; and 23 id. 795; People v. Supervisors of Delaware Co., 45 N. Y. 196; People, ex rel. Gardenier v. Board of Supervisors of Columbia Co., 134 N. Y. 1; 45 St. Rep. 311. And it is said by a learned text writer that there is not a case where the court of king’s bench has ordered art inferior court to render a particular judgment.

The respondent cites the case of People ex rel. Ready v. City of Syracuse, 144 N. Y. 63; 63 St. Rep. 38, as sustaining the orders in this respect. In that case, however, the contract .provided that. the engineer should make up his final account of the work and return it to the common council, duly verified by him, whereupon the common council should review and, when satisfactory, approve the same. Such a certificate had been given by the engineer, and had never been impeached or attacked by the city, and the court held that it was binding and conclusive upon all parties, and that it could not, in an application for mandamus, be assailed by the ministerial officers of the city. It will be observed that in that case it does not appear that the officers proceeded against had any duties to perform which were in their nature judicial, and it was not sought to enforce the performance of any such against them. Of course it is not claimed that the rule under discussion has any application to a case where the amount due to the relator is fixed by law or by the operation of any provision of the contract.

In the case before us, the power of the court is limited to compelling the appellants to carry out and execute the terms of the contract with the relator so far as duties in reference thereto have devolved upon them by the annexation act. In respect thereto, they stand in the place of the board of improvement of the town, and if it appears from the contract that that board was charged with the determination of any fact which is essential to ascertain in order to determine the amount due to the relator for gas supplied to the town, then we may compel the appellants to exercise their functions, but we cannot require them to determine that a particular amount is due and unpaid.

The contract contains the following provisions which are material upon the questions under discussion. The party of the second part (being the relator) agrees:

“ Sec. 6. To furnish a fixed or permanent illuminating gas of such quality and supplied at such pressure as to secure the consumption throughout the entire town of New Utrecht of the amount and quality contracted for, and which shall have an illuminating power of not less than twenty (20) candles when “tested at the place of manufacture by the impoved form of Benson photometer, using the most improved burner and standard candles.

“ 7. To allow the party of the first part to ascertain at any time by actual experiment the rate of pressure, the size of burners, the amount of gas supplied, and the quality thereof, and any person authorized by the party of the first part shall be allowed to test the illuminating power of the gas at the works or office of the said party of the second part. The party of the first part also reserves the right to test the quality, specific gravity, and pressure of gas, and size and capacity of the burners, at any time and in any portion of the town, and the party of the second part hereby agrees to pay all expenses connected with or arising from such tests.

“ 8. In case of default in either the amount or quality of the gas supplied, from whatsoever source, a corresponding reduction shall be made in the quarterly bills rendered.

“ 14. The number of lamps to be lighted as now estimated is five hundred, but the party of the first part reserves the right to increase the number of lamps to be lighted at any time, and the party of the second part hereby agree to extend the mains as required from time to time, and to receive as full compensation for all gas furnished and services performed an amount equal to the product of the number of lamps actually lighted multiplied by the price as stated in this contract for furnishing gas to each lamp.”

Section 16 is a time-table for lighting and extinguishing street lamps, varying for every fifteen days throughout the year.

“ 17. The party of the first part shall have power to employ inspectors, whose duties shall be to patrol the streets, avenues, and highways, and report to the party of the first part the actual number of lamps lighted and the condition of lamps, posts, burners, glass, and appurtenances, the actual number of and location of lamps unlighted, and the reason therefor; and the party of the first part is hereby authorized by the party of the second part to make pro rata deductions, when payments are made, for all unlighted lamps, and although the lamps may have been lighted that shall not be considered any evidence that they continued to burn, and if, through the inspectors, lamps are reported unlighted during the hours fixed for lighting, deductions shall be made; it being the duty of the party of the second part to keep all lamps in such condition that they will continue to burn.”.

“24. Upon the full and satisfactory completion of the work to be done under this contract and specifications, the party of the first part agrees to pay or cause to be paid to the party of the second part the sum of twenty-eight ($28) dollars per lamp per annum, l’or each and every lamp lighted and maintained in the manner hereinbefore provided for.”

It will be observed that the reports of the inspectors as to unlighted lamps are made binding upon the relator, but are not conclusive upon the board of improvement. Also, that deductions for failure to comply with any of the provisions of the contract are to be made by the board of improvement, when payments are made, which times, by the twenty-fifth provision of the contract, were fixed for the 10th days of April, July, October and January. One needs only to read these provisions of the contract to see that the board of improvement was charged with the duty of determining the quality of gas furnished and the number and condition of lamps lighted and burning during the period covered by any bill of the relator. This duty involved the consideration of the evidence upon the subject and the determination of the fact, including the amount actually due to the relator for the services rendered under the contract. This duty has, by the annexation act, been devolved upon the officers of the city, and is to be performed in accordance with the provisions of the city charter. The method prescribed by the charter for the payment of bills against the city is as follows: All claims must be presented to the comptroller of the city, specifying the details thereof, who may require the claimant to appear before him and be examined on oath, and submit to his inspection all books, papers, and documents in reference thereto. Laws 1894, chap. 568. It is the duty of the auditor to examine all bills presented against the city for payment, and no claim can be paid until he shall certify that the services have been rendered, and that the charges are reasonable or according to contract. Laws 1888, tit. 5, p. 975, § 1. Money is drawn from the treasurer upon warrants signed by the mayor and comptroller jointly, and upon vouchers examined and allowed by the auditor and approved by the comptroller, examined and certified by the mayor. Laws 1888, tit. 5, p. 975, § 2; Id. tit. 3, P- 968, §11. _

_ We agree with the respondent that but one presentation of a claim against the city is necessary, and when a bill has been presented to the comptroller and is in his possession, it is the duty of the auditor to examine it. How and when he shall obtain possession of it is a matter to be regulated in the financial department, and is no concern of the claimant. In neither of the cases before us is it denied that the claims in suit were presented to the comptroller more than thirty days before the proceedings were instituted, and the failure of the auditor and the comptroller to act upon them entitled the relator to a mandamus. But the duties which appellants are required to perform in reference to the relator’s bills are clearly judicial in their character, and they cannot be directed to audit or certify the bills at a particular amount. They are entitled to exercise their own judgment upon the evidence before thern, and to determine therefrom the number of lamps for which the relator is entitled to be paid for the period covered by its bills, and to make the proper deductions therefrom.

It is also apparent from the provisions of the charter referred to, that the orders appealed from cannot be sustained against the mayor. The examination of the bills and the determination of the amounts due thereon by the auditor and the comptroller precedes any duty imposed upon the mayor. Until the voucher is allowed by the auditor and approved by the comptroller, he is not required to act, and cannot be declared to be in default, and it must be assumed, when a proper voucher is presented to him, he will examine and certify to it, and sign the necessary warrant for its payment. The claim of the relator that the mayor and comptroller should have signed a warrant for the bill for the quarter-ending June 30th, upon the audit of the board of improvement of the town, cannot be sustained. That claim was overruled by Justice Cullen on the first application for a mandamus, and we agree with his conclusion that the bill, not being due until July 1st, the board of improvement had no power to act upon it.

The orders appealed from, so far as they direct the mayor to-draw and certify warrants upon the treasurer are reversed, and in other respects are modified so as to direct the comptroller and auditor forthwith to examine such claims, and the latter to certify to the services performed by the relator, and the value thereof, according to the contract, and, as so modified, the orders are affirmed, without costs.


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    Mary B. Lewis, App’lt, v. Charles Angermiller, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Landlord and tenant—Surrender.
    A surrender exists by act or operation of law, when the parties, without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have agreed to consider the surrender as made.
    2. Same—Implication.
    Such an implication arises, where the relation of vendor and vendee is created and there is a payment to the vendor of part of the purchase money and an agreement on his part to execute and deliver a warranty deed on receipt of the balance, and there are after the execution of the contract of sale, no payment of rent by the tenant and no demand therefor by the landlord for a period of upwards of eighteen months, though the rent by the lease was to be paid weekly.
    Appeal from a final order, dismissing a petition to remove the defendant from the possession of real estate.

      George W. McElroy, for app’lt; John J. Beattie, for resp’t.
   Brown, P. J.

This proceeding was instituted to remove the defendant from the possession of real estate for nonpayment of rent. It appeared that on April 1, 1892, one Robert B. Van Vleclc leased certain real estate in the town of Warwick to the-defendant for the term of three years, terminating on April 1,. 1895; that the rent reserved was twenty-five per cent, of the gross receipts of the business to be carried on upon the property, to be paid weekly. Provision was made in the lease for the employment of a cashier, and the ascertainment and determination-of the weekly receipts.

On August 29, 1892, Van Vleck ánd defendant entered into a contract for the sale and purchase of the demised property. The purchase price was $8,000, $500 of which was paid upon the execution of the contract, $2,000 of the balance was to be paid in cash, and for the remainder defendant was to give his bond, secured by a mortgage upon the property; and, upon receiving payment in such manner, Van Vleck agreed to execute and deliver to the defendant a warranty deed for the property, free from all incumbrances. About December 12, 1892, the defendant refused to take the title on account of an incumbrance on the property, but he testified upon the trial that he was ready to pay the purchase price when the title was perfected. On April 80, 1894, Van Vleck conveyed the land to the plaintiff, and on May 8, 1894, assigned to her the lease. Thereafter, the plaintiff demanded of the defendant that he comply with the terms of said lease, and pay to her one-quarter of the weekly gross receipts, and in November, 1894, no rent having been paid she commenced this proceeding.

Upon the trial the defendant and his wife testified without-contradiction that, at the time of the execution of the contract of sale, it was agreed with Van Vleck that, after September 1st, the defendant was not to pay rent under the lease. The special county judge correctly decided that the lease was surrendered, and that the relation of landlord and tenant did not exist between the-parties. A surrender exists by act or operation of law when the parties, without any express surrender do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to' consider the surrender as made. Such an implication arises from the facts of this case. The relation of vendor and vendee was created, and there was a payment to the vendor of a part of the purchase money, and an agreement on his part to execute and deliver a warranty deed on receipt of the balance; and what is conclusive to my mind as to the intent of the parties in relation to the lease is that after the execution of the contract of sale there was no payment of rent by the defendant, and no demand therefor by Van Vleck. The omission to make any demand or request of the weekly payment of rent for a. period of upwards of eighteen months shows conclusively that Van Vleck recognized the possession of the defendant as that of a vendee, and not as that of á tenant, and the conclusion is irresistible that the lease was regarded by both parties as surrendered. The case of Burnett v. Scribner, 16 Barb. 621, is quite like the case before us, and sustains the ruling of the county judge.

The order must be affirmed, with costs.

All concur.


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    Joseph Gottlieb, App’lt, v. Dutchess County Mutual Insurance Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895)

    Insurance—Conditions—Non-compliance.
    Where a policy provides, among other conditions, that the insured should, within sixty days after the fire, unless such time was extended by the company in writing, render a sworn statement to the company, stating the interest of the insured in the property, the cash value of each item thereof, the amount of loss thereon and, if required, should also furnish certificate of the magistrate or notary public living nearest the place of the fire, stating that he had examined the circumstances and believed that the insured had honestly sustained loss to the amount that such magistrate or notary public should certify, no recovery can be had where no certificate of a magistrate or notary public, though demanded, was furnished by the insured within sixty days after the fire and no proof made that the condition was waived by the company, nor where the certificate omits to state that the person making it had examined into the circumstances concerning the loss, or fails to state any value of the goods believed to be destroyed, or the proofs of loss does not show the cash value of each article destroyed by the fire.
    Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial on the ground of newly «discovered evidence.

      W. /S. Bennett, for app’lt; Milton A. Fowler, for resp’t.
   Brown, P. J.

This action was brought to recover upon a policy of insurance issued by the defendant to the plaintiff, and which, among other property, insured a horse and wagon, and a stock of peddler’s goods carried in a wagon wherever plaintiff might be stopping in the transaction of his business. On the night -of December 21, 1893. the plaintiff’s horse and wagon, and such goods as he was carrying with him, were destroyed by fire while the same were in the barn of one George Clark, near Jefferson-ville, Sullivan county, New York, where plaintiff had stopped for the night, while on a business trip. The policy provided, among other conditions, that the insured should, within sixty days after the fire, unless such time was extended by the company in writing, render a sworn statement to the company, stating the interest of the insured in the property, and the cash value of each item thereof, and the amount of loss thereon, and. if required, should also furnish a certificate of the magistrate or notary public living nearest the place of the fire, stating that he had examined the circumstances, and believed that the insured had honestly sustained loss to the amount that such magistrate or notary public should -certify. The referee found that these two conditions of the policy were not complied with.

There is no claim upon the part of the appellant that a certificate of a magistrate or notary public was furnished by the plaintiff within sixty days after the fire, and no evidence that either of the conditions referred to were waived by the defendant. While the condition as to the magistrate’s certificate was to be complied with -only in case that such certificate was required by the company, it appears from the testimony that such certificate was demanded by the defendant on January 11, and again on January 24, 1894. A certificate of a magistrate was furnished to the company on March 12th, after the sixty days had expired. It was not accepted, but was returned on March 13th, for the reason that it was not furnished within the time required by the policy, and was not made by the magistrate nearest to the fire. The certificate was also defective in omitting to state that the person making it had examined into the circumstances concerning the loss, and failed to state any value of the goods believed to have been destroyed. The testimony also failed to show compliance with the condition which required the proofs of loss to show the cash value of each article destroyed by the fire. These findings of the referee preclude a' recovery upon the policy, and the conclusion of the referee has ample support in the authorities. Blossom v. Insurance Co., 64 N. Y. 162; Underwood v. Insurance Co., 57 id. 500; Johnson v. Insurance Co., 112 Mass. 49. The motion for a new trial upon the ground of newly-discovered evidence was properly denied.

The judgment and order appealed from must beaffiarmed, with costs. All concur.


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    In the Matter of the Judicial Settlement of the Accounts of Mary C. Rogers, as Administratrix, etc. of Guy C. Goss, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Payment—Proof.
    The testimony was held, in the case, to establish the transfer by a husband of a claim due to his wife on account of his indebtedness to her, and not the retention of title thereto in himself and the mere direction to her as his agent to pay with it certain life insurance premiums.
    Appeal from a decree, settling the accounts of the administratrix of Guy G. Goss, deceased.

      Ihomas J. Bitch, for app’lt; Galvin D. Van Name, for resp’t.
   Pratt, J.

The petitioner called as»a witness Mary R. Goss, and her testimony established a transfer to her of the $500 claim by Guy 0. Goss in his lifetime. The witness says: “ I don’t remember his words. I supposed he gave me the $500. I had no doubt about it. He spoke of giving it to me. He spoke of having given it to me. He spoke of it as mine the last time he was downstairs." It is not disputed that he gave the paper, which evidenced the debt, to his wife, nor that he was in her debt. The appellant relies upon the statement of May R. Goss, that her husband suggested that she use the proceeds of the claim to pay the premiums on life insurance policies, to - show that he intended to •retain the title to the claim in himself, and not to vest it in his wife. His intention obviously was that his wife should benefit by the $500. To retain the title in himself, and direct her, as his agent, to pay the insurance, would not cony out that intention, but would be liable to defeat it, as this proceeding shows. His suggestion as to the use was chiefly significant as showing his interest in the future of his family. He had a right to pay the $500 to his wife. He tried to do it. We think he succeeded.

The appellant argues that an error was made in admitting the testimony. As defendant’s contention is fully sustained by other witnesses, that question need not be considered.

Order appealed from affirmed, with costs.

All concur.