author: Daniels, J.;

text:
    THE METROPOLITAN GAS-LIGHT COMPANY OF THE CITY OF NEW YORK, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Bowd of audit created by chapter 9 of 1872 — effect of audit of claim by — MecepUon to referee’s report — when necessa/ry.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover the amount claimed to be due to the plaintiff, under a contract for lighting certain- streets in the city of New York. The defendants alleged that the plaintiff had presented its claim to the board of audit created by chapter 9 of 1872, and that the amount allowed by the said board had been tendered to and rejected by the plaintiff. The referee held that the evidence was not sufficient to prove that the claim had been presented to the said board by the plaintiff, or by any one on its behalf, and therefore held that it was not bound by the audit of the board.
    The General Term held that the evidence was sufficient to show that the claim was presented by the plaintiff, and then proceeded to discuss the effect of the auditing of the claim by the board as follows : That “ it (the plaintiff) was not bound to secure the audit and allowance of its bills by the board, which the statute created, can make no difference in the result. By the terms of the act, the board had the power to consider, audit and allow the claim made, and the plaintiff availed itself of the right the statute secured to it. That was voluntarily done with the probability that, by means of the determination which might be made, payment under its provisions would be afterwards secured. The company took the chances of a decision favorable to its demand. If it had been secured, it would have been conclusive in favor of the right to payment. It was not so, as the result turned out. But, nevertheless, the determination can be none the less conclusive as long as the decision remains unre-versed. The board was given the power to hear and decide. It was judicial in its nature; and the decision made under the power conferred cannot be disregarded or annulled in a collateral proceeding, as the present action certainly is. The rule on this subject is one of general application, including all courts, boards and officers having the authority to hear and determine the claims or disagreements of parties. When a hearing has been had, and a decision has been finally made, even though the proceeding may have been an informal one, it will continue binding on the parties to it, so long as it remains unreversed. (People v. Oollms, 19 Wend., 56; Supervisors v. Briggs, 2 Hill, 135; 2 Denio, 26.) It was said, in the course of the opinion in this last case, that although the thing was done in a different manner from that in which courts usually proceed, yet it was done in the manner prescribed by law, and, in principle, it is precisely the same thing as though the matter had been adjudged by any court of the State. (Id., 43; see, also, Swift v. City of Poughkeepsie, 37 N, Y., 511.)

      An exception to the referee’s report was not required, to entitle the defendant to insist that it had been made against the evidence. That is only essential when questions of law are to be considered. (Code, §§ 268, 272.) In support of the appeal in this case, it has been insisted that the referee should have found, under the evidence, that the portion of the plaintiff’s claim which has been considered, had been presented by it to the board of apportionment and audit, and that this board, after hearing and considering it, made a determination declaring, according to its judgment, the sum which justly should be paid upon it. That was a matter of fact, and it should have been so determined, which would have entitled the plaintiff to a judgment different in amount from that recovered against the defendant.”

      D. J. Dean, for the appellant. Hamilton dole, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Beadv, J., dissented, on the ground that the evidence was not sufficient to authorize the referee to find that the plaintiff had ever submitted its claim to the board of audit.

Judgment reversed, new trial ordered, costs to abide event, unless within twenty day after notice of decision the plaintiff stipulate to reduce the amount recovered conformably to the report made by the board of audit and apportionment. In case such a stipulation shall be given, then the judgment, as so modified, affirmed, without costs on the appeal to either party.


source: Caselaw Access Project

author: BaeNAed, P. J.;

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK on the relation of CHARLES BANKS, and said CHARLES BANKS, Respondents, v. JAMES B. COLGATE, Appellant.

      La/nd, under water — letters patent — raeating of, when granted to other thorn, owner of upland — Owner of fee of street — right of to land under water in front of street.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      This action was brought to vacate a patent for lands under water in the Hudson river at Yonkers, "Westchester county. The patent was granted to the defendant in August, 1871.
    In 1852 Edward W. Can dee and Richard Jones were the owners of a tract of land at Yonkers, adjoining the Hudson river and south of Glenwood avenue. They caused a map of this property to be made and filed in the register’s office of Westchester county. On this map they laid out a street running north and south on the west side of their property, which they named North River street. They laid out various lots fronting on this street, and one of these lots, number sixty-one, on the east side thereof, was conveyed by various mesne conveyances to the defendant, James B. Colgate.
    The description of the west boundary of the lot as conveyed by Candee and Jones is “to the east line of North River street, thence northerly along the east line of said North River street one hundred and one feet.”
    North River street never was in fact used as a street, nor were any proceedings ever instituted by the corporation of Yonkers to acquire title to it.
    The old line of high-water mark opposite the lot conveyed to Colgate was all contained within the limits of North River street.
    At the south side of said lot high-water mark was about twelve feet west of the west boundary of the lot. At the north side of said lot it was about ten feet west of said westerly boundary. Between the south and north sides of the lot the line of high-water mark approached the said westerly boundary to within a foot. There was, therefore, a narrow strip of land in front of said lot-and separating it along its entire front from the line of high-water mark. This strip was, after the granting of the letters patent, conveyed by several mesne conveyances to Charles Banks, the relator. The relator claimed that he was the owner of the “ upland ” adjacent to the Hudson river, and that the letters patent which had been issued to the defendant on the representation that he was the owner of the adjacent upland, ought to be vacated.
    The issues in the action were referred to Livingston K. Miller, Esq., as referee, who reported in favor of the plaintiff and relator, vacating the letters patent. From the judgment entered upon the referee’s reporl the defendant appealed to the General Term.

      Tbe court at General Term said: “ The defendant never acquired any title to the irregular strip of land west of lot sixty-one. His deeds and those of his grantors are bounded by the east line of North River street, which excludes the strip in question and puts the same in what is laid down in the map as North River street. This street was an imaginary street, lying almost wholly in the waters of the Hudson river at the time the map was filed. It was never used as a street or road. The relator’s grantee used the strip of upland from time to time for purposes of pasturage. The defendant was not an owner of the upland at the time the patent was granted to him, whether he had a right of passage over North River street or not. The fee was in Jennings, either subject to an easement in the public or in individual lot owners, or absolutely in fee simple. I discover no objection to the present owner of the fee joining with the people in this action to annul letters patent granted to the person not entitled thereto. The averment that Banks owned the upland at the date of the issuing of the letters patent is quite immaterial. The sole controversy was about this strip. In point of fact Jennings, the grantor of Banks, owned the strip at the date of the patent and he conveyed it to Banks before the commencement of the action. Colgate had no right to his patent, whether Jennings or Banks owned the upland.”

      Cha/rles Jones, for the appellant,
    cited: Bissell v. N. 7. G. B. B. Co. (23 N. Y., 61); Holden v. Trustees Gold Spring (21 id., 474); Matter Lewis Street (2 Wend., 772); Matter of Thirty-ninth Street (1 Hill, 191); People v. Maxwan (5 Den., 399). Also, 18 La., 123; 5 Craneh C. C. R., 509; 1 R. S., 208.

      E. Ellery Anderson, for the respondents,
    cited: Wetmore v. Law (34 Barb., 515); Van Amringe v. Barnett if Bosw., 357); Anderson v. James (4 Robt., 35); Halsey v. MoGormaeh (13 N. Y., 296); Jaolcson ex dem. v. Hathaway (15 Johns., 447); Higgins v. Beynolds (31 N. Y., 151); Craig v. Boohester city (39 id., 404); Munn v. Worrall (53 id., 44).

       Decided June term, 1876, in the second department.

   Opinion by

BaeNAed, P. J.;

Gilbert, J., concurred.

Present — BaeNAed, P. J.; Gilbeet and Dyeman, JJ.

Judgment affirmed with costs.


author: Barnard, P. J.:

text:
    JOHN H. LANE, Appellant, v. ABRAHAM B. CONGER, Impleaded, etc., Respondent.

      Foreelosu/re sede — division of mortgaged premises into lots by mortgagor — when sold in

    The plaintiff conveyed to defendant a tract of land four hundred and ten feet by one hundred and nine feet ten inches, which had always been used as one residence, and took back a purchase-money mortgage thereon. Subsequently the defendant, without the assent of the plaintiff, made a map of the land, and laid out an avenue sixty feet wide through the middle thereof and two lanes upon the ends, which were opened but never dedicated to the public. Upon a sale under a foreclosure of the mortgage, the defendant insisted that the land should be sold according to the lots laid down on the map. Held, that the sheriff was right in refusing so to do, and in selling the land in one tract.
    Appeal from an order made at tlie Special Term, setting aside a sale bad under a judgment of foreclosure and directing a resale.

      Wheeler <& Brown, for tbe appellant.

      A. B. Conger, for tbe respondent.
   Barnard, P. J.:

This'is an appeal from an order setting aside a sale in foreclosure and directing a resale. On tbe 30tb day of April, 1862, tbe defendant, Abraham B. Conger, bought of the plaintiff the premises in' question, and executed the mortgage foreclosed as part of the purchase-money. The purchase-price was $4,700, and this mortgage was for $3,700, all of which is due, and over $1,000 of interest unpaid thereon. The defendant Conger has made a paper street through the middle of said premises, which he has named Hudson avenue, and has opened it, but has not dedicated it as a public street. Of course it has not been and cannot be accepted by the public authorities until dedicated. This avenue is sixty feet wide. He has also laid out on paper two lanes of twenty feet in width at each end of the piece. Neither of these lanes are entirely taken from the mortgaged land, but are in part made up of other lands, I presume of Mr. Conger. The piece, in its entirety, is only 400 feet by 109.10.

The avenue so called is the avenue on which the lots are to be fronted. The effect of this is to separate the house from the barn, one being on one side of the avenue and the other on the opposite side. The map makes fourteen distinct lots. Two are less than ten feet front; two are triangles, one of sixteen feet front, and running ninety-seven feet to a point, and one of five feet ten inches front by seventy feet to a point. The place had been used as one residence before plaintiff bought, and while he owned it, and has been so used subsequently by defendant Conger. The mapping was done by defendant Conger alone, and without the assent or concurrence of plaintiff. The premises were sold as one parcel. The order directs a resale according to the map. I think the sale was right. It does not distinctly appear whether the judgment directed the sale in one parcel. It is stated in the points to have been in the usual form, directing the sale of the mortgaged premises or so much thereof as was sufficient to pay the debt and costs. The decree is not given, but I assume the decree to have been in the usual form. The sale was of the premises as described in the mortgage and decree. The rights of w;ay sold are only those directed by the decree, and are copied from the mortgage. The sheriff was not bound to sell in parcels under the circumstances. (Lamerson v. Marvin, 8 Barb., 9; Griswold v. Fowler, 24 id., 135; Sherman v. Willett, 42 N. Y., 150; Whitbech v. Rowe, 25 How., 403; Anderson v. Austin, 34 Barb., 319.)

How can a resale be made according to tbe map ? Are the avenue and lanes to be sold ? The mortgage does not cover the entire lanes, and why is sixty feet in width of the mortgaged lands to be withdrawn from the security of the mortgage if they are to be withdrawn ? If the avenue and lanes are not to be sold, what right have the purchasers of the lots upon them to either, avenue or lane ? If not sold, then they will belong to Conger, or at best any right the purchasers would get in them would rest in estoppel merely. If avenue and lanes are to be sold, why sell them as streets ? A purchaser may close them. I think the order should be reversed, and the sale, as made, be completed by the sheriff.

Order reversed, with ten dollars costs and disbursements.

Gilbert, J., concurred; Dykman, J., not sitting.

Order reversed, with ten dollars costs and disbursements.


text:
    AMBROSE S. MURRAY and others, as Trustees, etc., Respondents, v. ABRAHAM D. DEYO, Appellant.

      Bmb'oad mortgage — trustees taking possession of road under — right of debtor of road to offset claim against the company, fading due after change of possession — Judgment of forecloswre — against whom it may be read in evidence — Witness—what question cads for opinion of.

    The YaUtiU Yalley Railway Company having made default in the payment of the interest falling due on mortgage bonds issued by it, the plaintiffs, the trustees under the mortgage, in pursuance of the terms thereof, entered into possession of the road in May, 1873, and received the rents and tolls thereof for the benefit of the bondholders. Subsequently, the mortgage was foreclosed and the road sold to the plaintiffs. This action was brought to recover money due to the road for transporting the mails for the half year, ending December 31,1873, received by the defendant, who had acted as agent for the road in collecting such money from the treasury department, and which he refused to pay over, he claiming to be entitled to set-off against this amount a note given by the company to him in October, 1873, due one year after date. Reid, that as the plaintiffs’ right to receive the earnings of the road became absolute in May, 1873, at which time defendant’s note had not yet become due, no offset thereof could be made in this action.
    Upon the trial, plaintiffs were allowed, against the defendant’s objection and exception, to introduce in evidence the judgment, in the action of foreclosure, to which the defendant was not a party. Reid, that this was proper; that the mortgage and decree were properly submitted to show the transfer of the title to the plaintiffs.
    Upon the trial a witness, who had been employed by one of the plaintiffs, was asked in their behalf: “For whom and in whose behalf did Mr. Burdell make that employment, if you understood?” Held, that the question did not necessarily call for an opinion of the witness, and was properly admitted.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.
    This action was brought by the plaintiffs as trustees of the second mortgage made by the "Wallkill Valley Railway Company, dated January 1, 1872. The plaintiffs, as such trustees, claim to recover certain moneys collected by the defendant from the United States government for postal service on the Wallkill Valley Railway, under a contract between that company and the government. The moneys collected were for postal service between July 1, 1873, and January 1, 1874.
    The mortgage provided that in case of default, “ it shall and may be lawful, and the said parties of the second part hereby are expressly and fully authorized and empowered to enter upon in that case and take possession of all and singular the said railway and the property and premises hereby mortgaged, and through the agency of the persons they may from time to time ap|3oint to collect and receive the tolls, incomes and profits of said road, hereby conveyed for the purpose of the security aforesaid, and until the same shall be sold or disposed of by them as aforesaid.”
    In May, 1873, the plaintiffs took possession of the road under the provision of the mortgage above mentioned.
    On the trial one of plaintiffs’ witnesses testified that he was employed in June, 1873, by the plaintiffs as superintendent on this road. He was then asked, “ For whom and on whose behalf did Mr. Berdell (one of the plaintiffs) make that employment, if you understood?” This question was objected to by the defendant as calling for the conclusion of the witness. The witness was allowed to answer, and said: “ For the trustees of the second mortgage bonds.”

      A. Sclioorvmaker, for the appellant.

      Bacon c6 Dwyer, for the respondents.
   Barnard, P. J.:

The Wallkill Yalley Railway Company executed to tbe plaintiffs, as trustees, a mortgage to secure tbe holders of certain bonds of tbe company. The mortgage was given in January, 1872. It covered tbe railway and its appurtenances, including tbe franchise, all tbe personal property, and all tolls, rents, issues and profits to be derived therefrom. The plaintiffs, as trustees, were on default in payment of tbe interest on tbe bonds for a specified time, and upon a request in writing by a majority of tbe bondholders, authorized and empowered by tbe terms of tbe mortgage to take immediate possession of tbe road and to receive all tbe tolls and rents for tbe security of tbe bondholders. Tbe railway company defaulted in tbe payment of its interest in July, 1872, in part, and entirely on tbe 1st January, 1873, and subsequent. Tbe plaintiffs, by tbe written request of a majority of tbe stockholders, took possession of tbe railway and its property, under tbe mortgage, and subsequently sold tbe same by virtue of a decree of this court. When tbe plaintiffs took possession of tbe road, tbe defendant was tbe agent of tbe 'Wallkill Yalley railway to collect from tbe post-office department of tbe United States tbe moneys earned by tbe railroad for carrying tbe mails thereon. Tbe moneys received by him for tbe half year ending June 30, 1873, be paid to tbe plaintiffs; tbe money be collected tbe next half year, be collected and did not pay over. Tbe amount of tbe collection was $118.44. Tbe railway company gave defendant a note for value on October 1, 1872, due in one year, for $4:55.25. Tbe defendant claims to offset this note in this action.

Upon tbe trial, tbe mortgage to plaintiffs and tbe judgment roll of tbe judgment determining tbe issue and ordering tbe sale of tbe railway between plaintiffs and tbe Wallkill Yalley railway were received in evidence. Deyo was not a party to it, and tbe first question presented is whether they were properly admitted. They were admitted to prove title to tbe moneys in dispute. If tbe Wallkill Yalley railway bad given a conveyance to plaintiffs of tbe right to tbe moneys, no objection could be made to tbe proof of tbe conveyance, even though Deyo was not a party to it. This case is tbe same. Tbe plaintiffs bad a mortgage which could, by default of payment of interest, be made an absolute and perpetual assignment of the road and its earnings. The judgment determined the existence of the facts necessary to support it conclusively. Deyo was not a party, but the judgment is a muniment of title against the defendant or any other stranger. The defendant was an agent of the company. He had no title to be overreached by the decree. If he had, his title would not be affected. The mortgage and decree passed all interest from the Wallkill Yalley Railway Company as effectually as if by deed, and was properly received in evidence. (Fuller v. Van Geesen, 1 Hill, 171.)

The defendant had no right of offset.

The plaintiffs’ right became absolute in May, 1873, to the earnings of the road; defendant’s note did not become due until October following. When the change of title was before the maturity of the note, no offset could be made. (Martin v. Kunzrmuller, 37 NY., 396.) The plaintiffs put, upon the trial, this question to the witness Jones: “For whom and on whose behalf did Mr. Burdell make that employment, if you understood?” This was admitted, under defendant’s exception, and this ruling is urged for error. I think the question here proposed rather comes under the case of Sweet v. Tuttle (11 N. Y., 165). There the question was : “ On the part and behalf and for whom were the services rendered? ” This was held not necessarily to call for an opinion. The question in this case does not. A single question further would have rendered it certain whether he related what was said, or only a deduction from what was said. In Nichols v. Kingdom Iron Ore Oo. (56 N. Y., 618), the question is entirely different: “ For whom did you set up the machinery, as you supposed ? ” This question manifestly called for an opinion of the witness instead of for a fact.

This question becomes unimportant if I am right in the propriety of the introduction of the judgment roll. The evidence taken under the question we are considering was only addressed to the fact of the plaintiffs’ taking possession, in May, 1873, of the road. The roll establishes that fact and fixes its date to. be the 20th May, 1873.

Judgment affirmed, with costs.

Gilbert, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    CATHARINE TILTON, Appellant, v. CLARENCE ORMSBY, Executor, etc., of JOSEPH TILTON, Deceased, and WILLIAM V. TILTON, Respondents.

      Bmminaiion as to effects of deceased persons— OTiap. 394, of 1870 — Inadmissibility of testimony objectionable under § 399 of Gode— Order fe>' delivery of property to execuim' — Wmdence justifying — Worm of order.

    Under chapter 394, of 1870, authorizing an executor or administrator to institute an inquiry as to any effects of the deceased, believed to be withheld or concealed from him, the surrogate acts judicially in conducting the examination, and the testimony receivable therein is subject to the restrictions of section 399 of the Code, prohibiting the admission of evidence given by parties interested in the proceeding as to personal transactions had with the deceased.
    In order to justify an order requiring the delivery of the property to the executor or administrator, the surrogate must find, as a fact, that it belongs to the estate; it is not enough that he should determine that there is probable cause to believe that it belongs to it.
    The order should specify distinctly the property, delivery of which is required, and an order, which, after specifying certain articles, proceeds, “ and all other property, goods, etc., of the said (deceased), in her possession or under her control at her place of residence,” is too broad and must be reversed.
    Appeal from an order of tbe surrogate of Orange county, made in pursuance of chapter 394, of 1870, requiring tbe appellant to deliver to tbe defendant Ormsby as executor of ber deceased husband, certain articles of personal property, and in case of ber failure so to do ordering that a warrant issue.
    The defendant William Y. Tilton was a beneficiary in remainder under tbe will.

      Warmg <& Headley, for tbe appellant.
    ■ Seott c& HvrseJiberg, for tbe respondents.
   Barnard, P. J.:

Tbe surrogate does not seem to have determined tbe question on which tbe order could be based. Tbe plaintiff is tbe widow of Joseph Tilton, deceased. Tbe will was executed July 24, 1875. Tbe defendants are tbe executors of tbe will.

By chapter 394 of the Laws of 1870, it is provided that any executor who “ shall have reasonable grounds to believe that any goods, chattels, credit or effects of tbe deceased * * * shall not have been delivered to such executor, * * * and upon satisfying tbe surrogate of the county in which said letters shall theretofore have been issued, by affidavit, that there are reasonable grounds for suspecting that any such effects are concealed or withheld, such executor or administrator shall be entitled to a subpoena, * * * to such persons as may be designated by said executor or administrator, requiring them to appear * * * for the purpose of being examined touching the estate and effects of the deceased.” After making provisions to compel attendance of such person when subpoenaed, the act provides, section 5 : If upon the inquiry it shall appear to the officer conducting. the same that any effects of the deceased are concealed or withheld, and the person having the possession of such property shall not give the security in the next section specified for the delivery of the same, such officer shall issue his warrant directed to the sheriff, marshals and constables of the city or county where such effects may be, commanding them to search for and seize the said effects, and for that purpose, if necessary, to break open any house in the day-time, and to deliver the said property so seized to the executor or administrator of the deceased. * * * ” ■ The executor procured a subpoena directed to Catharine Tilton, appellant under this act. She appeared and was not called. Evidence was given by the executor, tending to show that certain savings bank books and three notes, amounting to about $600 together, belonged to the deceased. Mrs. Tilton appeared herself as a witness to prove a gift to her by her husband of the property in question, a few days before his death. I think the surrogate properly rejected her testimony. By section 398 of the Code, a witness cannot be excluded for interest in any court and before any person acting judicially,” except as qualified by section 399. This section 399 excludes all interested witnesses and persons from testifying to any personal transaction or communication with a deceased person, as against an executor. Mrs. Tilton comes within the person excluded by section 399. The surrogate was acting judicially in this inquiry. Mrs. Tilton then gave evidence tending to show the gift by her two daughters a short time before testator’s decease and after the will was made. The surrogate, instead of finding that any effects of the deceased are concealed or withheld, finds that it was made to appear by the proofs taken on the application, “ that there is reasonable ground to believe that certain goods, chattels, credits and effects of the deceased, and of which he had possession at the time of his death,” specifying one savings bank book, one note made by Chambers for $200, and two notes of Pailón, of $200 each, “ are concealed or withheld from the said executor by Catharine Tilton, the widow of the said Joseph Tilton, deceased.” He has not found the gift to be good, or the contrary, only that there is reasonable ground to believe the property to belong to the estate after hearing the evidence. Satisfactory and reasonable belief justified the inquiry. What was the result of the evidence before the surrogate as to the title ? He has not said this. The order for the warrant is also too broad. The order specifies distinctly the property which there is reason to believe appellant had in her possession belonging to the estate. Instead of ordering these items only to be delivered, and her house to be broken open to obtain them in case of refusal, the order includes “ all the other property, goods, chattels, credits and effects of the said Joseph Tilton, deceased, in her possession or under her control at her place of residence.” No evidence was given of any other property besides that specifically named, and yet by the order, if she should give that up, still her house may be broken open to search for unnamed and unproven property under a general search for the property of Joseph Tilton, deceased.

I think the order should be reversed, with costs.

Gilbert and Dykman, JJ., concurred.

Decree of surrogate reversed, with costs and disbursements.


text:
    ISABELLA F. KINCAID, Respondent, v. WILLIAM ARCHIBALD, Appellant.

      Statute of limitations — when ba/r of, removed by written promise to pay interest— Code, % 110.
    The plaintiff, in 1851, loaned to the defendant, her sister’s husband, $1,800, of which $1,600 remained unpaid in the year 1861. In 1866 defendant paid $200 thereon. In 1872, he signed and delivered to the plaintiff the following paper: “Received January, 1861, from Mrs. J. R. Kincaid the sum of $1,600, for which I agree to pay interest, at the rate of seven per cent per annum, from this date. Paid January, 1866, to Mrs. Kincaid on the above $200.”

      In an action to recover the amount due thereon :

      Held, (1) that parol evidence was admissible to show the time of the execution and delivery of the paper.
    (2) That, although it contained no express promise to pay the principal, yet, as it contained an explicit admission of an existing indebtedness and a promise to pay the interest thereon, that it was sufficient to remove the bar of the statute of limitations, which had run against the debt at the time of its delivery.
    Appear from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover the amount of a debt alleged to be due to the plaintiff from the defendant, which was contracted in 1851. The defendant set up the statute of limitations.

      R. W. Van Pelt, for the appellant.

      Ral/ph E. Prime, for the respondent.
   Barnard, P. J.:

The sole question presented upon this appeal is the legal effect of a receipt given by defendant to plaintiff, in 1872. In 1851 or 1852, the plaintiff, at that time unmarried, lent to her sister’s husband, the defendant, the sum of $1,800. Payment was made on account of interest and principal between 1852 and 1861, when the balance unpaid was $1,600. Two hundred dollars was paid by defendant to plaintiff on account of this $1,600 in January, 1866. In August, 1872, the defendant gave plaintiff this paper:

“Received, January, eighteen hundred and sixty-one (1861), from Mrs. J. R. Kincaid, the sum of sixteen hundred dollars ($1,600), for which I agree to pay interest at the rate of seven per cent per annum from this date. Paid January, 1866, to Mrs. Kincaid on the above, two hundred dollars ($200).

“ WILLIAM ARCHIBALD,

“ Yonkers.”

The question is whether this paper is sufficient to revive the debt which was barred by the statute of limitations in August, 1872. The defendant claims that the paper not being dated, the promise to pay is, in legal effect, as if made in January, 1861. That there i's no promise to pay the principal and that thereby there was no revival of the principal debt. I think the objection not well taken. The paper must speak as of the time of its execution and delivery. When the date is omitted, or even wrongfully inserted, parol evidence may be given and fix the time of date. (Draper v. Snow, 20 N. Y., 331.) On the 2d of August, 1812, the defendant acknowledged that he had received $1,600 of plaintiff for which he agreed to pay interest from this date,” clearly from the date of the loan just stated; he also, in this paper, acknowledged that he had paid on the loan $200 in January, 1866.

No express promise to pay the principal was needed. An explicit statement that a loan was unpaid and that a present indebtedness existed, was sufficient to revive a debt before the Code. Giving a note for interest due was held a sufficient acknowledgment of the debt to take it out of the statute. (Wenman v. Mohawk Ins. Co., 13 Wend., 261.) The Code (sec. 110) simply requires the acknowledgment or promise “ to be in writing.” This section was designed to introduce no new principle applicable to reviving stale demands, but solely to prevent the revival of such demands by loose oral declarations. The paper in question admits the original loan; agrees to pay interest; recites a payment of a portion of the claim some five years after its creation. I think it sufficient to revive the claim with the interest on it from the date of the advancement of the money.

Judgment affirmed, with costs.

GilbeRt and DtemaN, JJ., concurred.

Judgment affirmed, with costs.


author: BarNArd, P. J.:

text:
    TEUNIS G. BERGEN, Appellant, v. ADOLPH GUBNA, as Supervisor, and others, Respondents.

      Town MU — purcMse of site for — application to supervisors tlmefon', unde/r § 20, chap. 482 of 1875 — wMt is pn'oper.

    Upon the application of certain tax-payers of the town of New Utrecht, the hoard of supervisors ordered a special town meeting “to consider and decide the question of purchasing a site for a town hall.” At a meeting held in pursuance of this order, a resolution was adopted “that the question he determined by ballot of the votes of this town meeting, whether a site shall be purchased for a town hall, and a building purchased or erected for such hall. * * * ”
      Upon the return of an affirmative vote on this resolution to the hoard of supervisors, authority was given to the town to purchase the site and erect the hall, and to borrow money for that purpose. Held, that the resolution adopted by the town meeting was a sufficient compliance with section SO, chapter 482, of 1875, empowering the board of supervisors to authorize any town, when a/pplicaUon shall he made therefor by vote of a majority of the electors * * * to purchase a site for a town hall, and erect a building thereon.
    The power conferred by this section is not restricted by chapter 197, of 1847, and chapter 157, of 1849, authorizing the erection of a town -hall by the said town, and limiting the amount to be expended therefor.
    Appeal from an order made at tbe Special Term dissolving a temporary injunction granted in tbis action, and denying a motion to continue tbe same.
    Tbe action was brought by tbe plaintiff, a resident and tax-payer of tbe town of New TTtrecbt, in tbe county of Kings, to restrain tbe defendant Gubna, supervisor of said town, from issuing bonds in tbe name of tbe town to provide means for purchasing a site and erecting a town ball thereon, and to restrain tbe other officers of tbe town from co-operating with him.

      John Wmslow, for tbe appellant.

      John H. Bergen, for tbe respondents.
   BarNArd, P. J.:

By section 19 of chapter 482 of tbe Laws of 1875, tbe legislature enacted that “boards of supervisors should have power to provide for tbe calling and bolding of special town meetings, to consider and decide any question upon which tbe electors of tbe town may be called to take action in accordance with tbe provisions of tbis act.”

By section 20 of tbe same act, power is given to tbe board of supervisors to authorize any town, when application shall be made therefor by vote of a majority of tbe electors voting on tbe question at any annual or duly called special town meeting, * * * to purchase a site for a town or village ball, and to purchase or erect a building for such ball, and to raise money as may be necessary from time to time for tbe care, preservation and improvement of such ball.”

On. tbe 28th of June, 1876, a petition was presented to tbe board of supervisors of Kings county, from certain tax-payers of New Utrecbt, asking tbe board to call a special town meeting “ to consider and decide tbe question of purchasing a site * * * for a town ball for said town.”

• Tbe board ordered a special town meeting to consider and decide this question to be beld on lltb July, 1876. At this meeting tbe electors voted by a large majority in favor of tbe following resolution :

Resolved, “ That tbe question be determined by ballot by tbe votes of tbis town meeting, whether a site shall be purchased for a town ball, and a building purchased or erected for such hall, tbe amount to be raised by tax for such purpose not to exceed tbe sum of $10,000, and money raised as may be necessary from time to time for tbe care, preservation and improvement of such ball.” Upon tbe return of tbe vote on tbis resolution to tbe board of supervisors, it authorized tbe town of New "Utrecht to purchase tbe site and erect tbe ball, and for that purpose to borrow money not exceeding $10,000.

Tbe plaintiff objects to tbe legality of tbe proceedings, because tbe vote of tbe town meeting was not to make tbe application to tbe board of supervisors, but upon tbe question of tbe willingness of tbe electors to purchase tbe site, and erect tbe ball. I think tbe objection of no weight. Tbe object of tbe law is plain. Tbe supervisors may, with tbe consent and on the application of tbe town, authorize it to buy tbe site and build tbe ball. Tbe electors voted that a site should be purchased and a ball built.

TJpon tbis tbe supervisors conferred tbe power. Tbe consent of tbe town, and tbe authority of tbe board concur, and that is all which is called for by tbe act in question.

By chapter 197 of Laws of 1847, any town was authorized to vote a sum of money for tbe purchase of a site and building for a town ball, not exceeding in number of dollars twice tbe number of electors in tbe town. By chapter 157, Laws of 1849, New Utrecbt was permitted to raise tbis amount in three equal installments.

In 1870, tbe electors of New Utrecbt voted to raise all it could raise, $900, for tbe site and ball. Tbe money is now in tbe bank to tbe credit of tbe town.

It is clarified that these laws are still in force, and that New Utrecht can proceed only under these laws. The power conferred upon towns and boards of supervisors by the act of 18J5, is unrestricted. It covers all cases which come within its provisions. There is no question involved as to the repeal of the Laws of 1841 and 1849. These laws applied only to towns where there was no town-house, and limited the money which could be raised to obtain one. If there had been a $900 town hall built under the law of 1841, it would be no reason why the town and board of supervisors could not obtain a better one under the law of 1815.

The order denying an injunction should be affirmed, with costs and disbursements.

DykMAN, J., concurred. Gilbert, J., not sitting.

Order.affirmed, with costs and disbursements.


author: BarNAed, P. J.:

text:
    MARGARETTA P. BARNES, Appellant, v. SARAH JANE STOUGHTON and CHARLES STOUGHTON, her Husband, Respondents, Impleaded with WILLIAM DOUGHERTY and JOHN A. CURRIER, Appellants.

      Sale of mortgaged premises — power of eowrt to direct sale of all the property for benefit of subsequent ineumhi'anem's.

    In an action to foreclose a mortgage, upon the written application by the owner of the equity of redemption, and of all the parties to the action, including all persons who, at the time of the filing of the Us pendens, had liens upon the property, subsequent to that of the plaintiff, the court may order that all the premises be sold in fiarcels (though a portion thereof is of sufficient value to pay up the amount due the plaintiff), not only for the benefit of the plaintiff, but also for that of all subsequent incumbrancers and the owner of the equity of redemption.
    Appeal from an order made at the Special Term, reversing an order directing the manner in which the mortgaged premises described in the complaint in this action should be sold. •

      Jamies B. Ma/rvm, for the appellant Barnes.

      John M. Metres, for the appellants Dougherty and Currier.

      Dermis McMahon, for the respondents.
   BarNAed, P. J.:

The order should be reversed. The action was commenced to foreclose a mortgage for $10,000, held by the plaintiff upon certain lands described in it. There were very numerous subsequent liens, some by mortgage and others by judgment. The original decree followed the usual form and directed the sale of the mortgaged premises, or such part thereof .as should be sufficient to pay the mortgage debt and costs. After a sale under this decree, and after it had been set aside, because not made in parcels, all the parties to the action, including all who had existing liens at the filing of the notice of pendency of this action, made a written stipulation that the decree should be amended so that it should direct that all of the premises be sold not only for the benefit of plaintiff, but also for all subsequent incumbrances and the said Sarah Jane Stoughton, the owner of the equity of redemption.” The decree was amended on the 26th June, 18J3, and a sale of all the property in parcels made.

At the sale, one of the purchasers declined to take title to two of the lots or parcels sold, known by the numbers 10 and 16. The purchaser was relieved from her bid, because no mention was made of a right of the public to include a portion thereof in a street. The action is now in this position: All the lands have been sold under this amended decree, except two parcels. The land sold has realized more than enough to pay plaintiff her mortgage and costs. It has not realized sufficient to pay all the liens on it represented by the parties signing the stipulation, and will not, if the two remaining pieces are sold for the extreme value claimed therefor by the owner of the equity of redemption.

By the order in question, the court, at Special Term, set aside and vacated the order amending the decree of June 27, 1873. This seems, from the provisions of the order, to have been done upon the ground that the court had no power to sell premises, except to pay the mortgage debt. The sale, so far as made, is legalized by a declaration in the order that Mrs. Stoughton is estopped from moving to set aside the sales already made; I think the court had the' power to make the amended decree in question. It is given by statute. (2 R. S., 193, § 165.) By this statute power is given the Court of Chancery, if the mortgaged premises are so situated that the sale of the whole will be most beneficial to the parties, the decree may, in the first instance, be entered for tbe sale of tbe whole. Tbis power was exercised in Beekman v. Gibbs (8 Paige Ch., 511).

In an action to foreclose a mortgage, where a junior mortgagee was a defendant, tbe court ordered a sale to cover tbe plaintiff’s debt, and all liens between it and tbe junior mortgagee including it. In tbis case (as appeared in Liming stony. Meldrwm (19 N. Y., 440) tbe decree was amended after tbe plaintiff’s mortgage, debt and costs bad been paid by sale of part of tbe premises. Application was made on tbe part of an alleged mechanic’s lienor to sell tbe remaining premises, and upon consent being given by tbe parties it was so ordered. Tbe power of tbe court was upheld.

Order reversed, with costs and disbursements.

Gilbert, J., concurred. DyxmaN, <J., not sitting.

Order reversed, with costs and disbursements.


text:
    SARAH MARKEY, Claimant, Appellant, v. EUGENE A. BREWSTER, Executor, etc., Respondent.

      Services rendered by one member of a family p another — recovery for — when proper.

    Defendant’s testatrix being taken sick, sent for tlie plaintiff, ber daughter, who had a family of ber own, with whom she resided, to come and take care of ber. Plaintiff accordingly left her home and resided with and took care of the deceased for nearly four years, during which time the deceased frequently said that the plaintiff should be well rewarded therefor.
    In an action brought to recover the value of such services, after the death of the testatrix, held, that it was not to be classed with the ordinary cases of services rendered by one member of a family to another, and that plaintiff was entitled to recover.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.
    Tbe action was brought by tbe plaintiff to recover tbe value of services rendered by ber in nursing and taking care of ber mother, tbe defendant’s testatrix.

      Shafer <£ Hill, for tbe appellant.

      Walter O. Anthony, for tbe respondent.
   BarNArd, P. J.:

Tbe deceased was tbe mother of tbe plaintiff, but tbe plaintiff bad a family of ber own, and lived with ber family some miles from tbe deceased. Tbe deceased, on being taken sick and helpless, sent for ber daughter, tbe plaintiff, to come at once and take care of ber. This was in 1869. Tbe plaintiff substantially gave all ber time to nursing and taking care of ber mother for tbe four years following. Tbe deceased is proven to have repeatedly said during those four years that plaintiff should be well rewarded; ” “ that she should receive a fair compensation or reward for ber ser•vices; ” “ that she (deceased) would see she (plaintiff) was well paid for it (her services); ” that she intended to see tbe claimant paid; ” that she shall be well paid for it.” Some of these declarations were made in tbe presence of plaintiff. There is nothing in tbe evidence tending to show that such compensation to plaintiff was to be made by will. Proof was offered by plaintiff to show that she received nothing under tbe will of tbe deceased, which was excluded. If such bad been tbe understanding, and tbe same bad not been complied with, an action at law for tbe value of tbe services could have been maintained. (Robinson v. Raynor, 28 N. Y., 494.) In tbe absence of proof showing a design to compensate by will, we think tbe action sustainable. Tbe plaintiff was not a member of tbe family of deceased at tbe time of ber employment by deceased. She was hving in ber own household. She never legally ceased to be a member of ber own household, although absent at ber mother’s, under ber mother’s employment. Tbe deceased repeatedly promised plaintiff should be paid. This case is not one to be classed with those cases where tbe services are to be gratuitous, as having been rendered by one member of tbe same family and household for another.

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

Gilbert and DyKMAN, JJ., concurred.

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


author: BaeNaud, P. J.:

text:
    FRANCIS B. STRYKER, Jr., Respondent, v. PATRICK CASSIDY, Appellant.

      Mechanic’s lien — chaptw' 478 of 1862 — meaning of the word “ labor " — Architect not entitled to lien for serrmees.

    The word “labor,” as used in chapter 478 of 1862, providing that any person who shall hereafter perform any labor in building, altering or repairing any house shall, upon filing the notice required by that act, have-a lien for the value of such labor, does not include the services rendered by an architect in superintending the erection of the house, and he is not entitled to a lien on the house for the value thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The action was brought to foreclose a mechanic’s hen filed under chapter 418 of 1862 for services rendered by the plaintiff, as an architect, in preparing plans and specifications and superintending the erection of the building against which the hen was sought to be enforced.

      II. O. Place, for the appellant.

      Jos. II. Pray, for the respondent.
   BaeNaud, P. J.:

The question presented by this appeal is, whether an architect is a person who can have a hen under chapter 418, Laws of 1862. The particular words under which the claim is made are as follows: “ Any person who shah hereafter perform any labor, or furnish any materials in building, altering or repairing any house, building or other improvement upon lands or appurtenances to such house or other building by virtue of any contract with the owner * * * shall, upon filing the notice * * * have a hen for the value of such labor and materials upon such house,” etc.

The plaintiff, as architect, superintended the erection of a house on defendant’s land, by a contract with the defendant personally. 1 am unable to find any case involving a consideration of this section, bat tbe principle contended for bas received adjudication. In Ericsson v. Brown. (38 Barb., 390), tbe words of tbe “New York and Liverpool United States Hail Steamship Company” charter contained these words: “ Tbe stockholders of tbe said company shall be jointly and severally individually liable for debts that may be due and owing to all their laborers and operators, for services performed for said corporation.” Tbe plaintiff in that case, Mr. Ericsson, performed labor and services as a consulting engineer. It was held that be did not come within the section; that “ laborers and operators” did not cover a consulting engineer; that the act was not designed to protect professional men. In Aikin v. Wasson (24 N. Y., 482), a contractor built a portion of a road bed for a railroad company. The law provided that “all the stockholders of every such company shall be jointly and severally liable for all the debts due and owing to any of its laborers and servants for services performed for such corporation. It was held that the contractor who performed labor himself with his men, did not come within the description of “ laborer or servant” in the section referred to. It has been held in this court that a bookkeeper did not come within the term of section 18 of chapter 40, of Laws 1848, whereby the stockholders were made personally liable “for all debts due and owing to all their laborers, servants and apprentices, for services performed for such corporation.”

I think services rendered by an architect do not come within the meaning of term “ labor” under the lien law in question, and that the judgment should be reversed and a new trial granted at Special Term, costs to abide event.

Gilbbet, J., concurred.

Present — BarNArd, P. J., Gilbert and DtkjyiaN, JJ.

Judgment reversed and new trial granted at Special Term, costs to abide event. «


author: BaeNAjíd, P. J.:

text:
    GOUVERNEUR PAULDING and others, Respondents, v. GEORGE COOPER and others, Appellants.

      Contracts by piiblio officers — duties of, as to payment — when personally liable thereon — Effect of a clause in contract exempting officers from personal liability.

    The defendants, commissioners appointed under chapter 720 of 1869, were authorized thereby to borrow §10,000, and, in addition thereto, to issue town bonds, not exceeding §20,000 per mile, to widen, grade and bridge a highway known as the eastern boulevard, the town authorities being directed to deliver the bonds to them as they might be needed. The plaintiffs contracted with the defendants to build a bridge upon said highway for $19,864, to be paid in bonds. Upon applying to the commissioners for payment, after the completion of the work, they were informed that all the bonds authorized by the act had been issued to other persons for constructing the highway.
    In an action by the plaintiffs to charge the defendants personally with the amount due under the contract, held, that they were entitled to recover.

      Held, further, that their right to recover was not affected by the facts that the contract was made by the defendants as commissioners and not as individuals, and that it contained a clause providing that they should not be held to any individual liability whatever.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe trial of tbis action by tbe court without a jury.
    Tbe action was brought to charge tbe defendants personally with tbe amount due under a contract entered into by them, as commissioners of tbe eastern boulevard of tbe town of "Westchester, for tbe construction of an iron bridge. Tbe contract was made “ between Abraham Hatfield, George Cooper, Hugh Lunney and Thomas Jay Bryne, not as individuals but as a body corporate, commissioners of tbe eastern boulevard of tbe town of Westchester, in tbe county of Westchester and State of New York, acting under authority of tbe law of tbe State of New York (chapter 120, 1869), parties of tbe first part,” and concluded as follows:

      “ Inasmuch as tbe said commissioners, parties of tbe first part, are acting in a public capacity, they shall not be held to any individual liability whatever; and, also, inasmuch as tbe road is needed for public use without unnecessary delay, tbe party of tbe second part covenants to perform tbis contract within tbe stipulated time.”

      Odie Olose, for tbe appellants.

      Osem' Bmedbmg, for tbe respondents.
    The reservation in tbe contract exempting tbe defendants from individual Lability has no force whatever. (Fwrnimal v. Ooombes, 5 Manning & Granger, 136.) When an individual sustains an injury by the misfeasance or nonfeasance of a public officer wbo acts, or omits to act, contrary to bis duty, the law gives redress to the injured party by an action adapted to the nature of the case. (Adsit v. Brady, 4 Hill, 630 ; Bobmson v. Chamberlain, 34 N. Y., 389; Fulton Fine Ins. Co. v. Balckoim, 37 id., 648; Hover v. Bcurkhoof, 44 id., 113; Btioks v. Bow, 42 id., 47; MoCa/rthy v. City of Syracuse, 46 id. 194; Joforuson v. Belden, 47 id., 130 ; Clcurk v. Muller, 54 id., 528; Meriel v. Wymonsold, 13 Oar. II, Hardres’ R., 205; Horsley v. Bell [1778] ; 1 Brown’s Chancery Oases, n, 101; S. 0., Ambler’s R., 770; 1 Brown’s Parliamentary Oases, 396 ; Higgins v. Limingstone, 4 Dow’s R., 341; see at pp. 355, 356; Burrell v. Jones, 3 B. & Aid., 47; Lambert v. Knott, 6 Dowling & Ryland, 122; Pwrrott v. Eyre, 10 Bing., 283; Cullen v. Duke of Quemsberry, 1 Brown’s Chancery Oases, 101; Ayjpleton v. Binks, 5 East, 148; Lancaster v. Tucker, 1 Bing., 201; Bwrls v. Smith, 7 id., 705; Doubledcuy v. Muskett, 7 id., 110; Hoskin v. Slaton, Hardwick’s Oases, 360.)
   BaeNAjíd, P. J.:

The legislature, by chapter 720, Laws of 1869, authorized the town of Westchester, in Westchester county, to borrow $10,000 and to issue bonds of the town, not exceeding $20,000 per mile, to widen, grade and bridge a highway in that town, known as the Eastern boulevard.

The defendants were appointed commissioners to widen make and construct the same. The work was required by the act to be done by contract. The commissioners were to make the contracts, and could, by the provisions of the act, require security for the faithful performance of the work by any contractor. The work could be done in sections, at the option of the commissioners. The town authorities were required to deliver to the commissioners, from time to time, as might be needed, bonds of the town for the purpose of the improvement of the highway. Under this act the defendants, as such commissioners, in the manner provided by this law, contracted with the plaintiffs to erect an iron bridge over the Westchester creek for the price of $19,864, payable from time to time as the work progressed, in the bonds of the town. The plaintiffs completed tbe bridge under tbe contract, and did tbe extra work incident thereto, and wben tbe work is completed they are told tbat all tbe bonds bave been issued wbicb tbe act permitted, and tbat there is no fund with wbicb to pay plaintiffs for tbe bridge. I think tbe defendants are plainly personally liable. Tbey are public officers. They were charged with tbe duty of keeping tbe work within tbe limit authorized by tbe act, and whenever a contract was made tbey were charged with tbe duty of keeping tbe amount necessary to perform it. Tbe contract made an appropriation, and it was tbe duty of tbe commissioners to keep it inviolate. Tbe defendants must assume one of two positions, and either will uphold this action. Tbey either contracted with plaintiffs in excess of their power, or tbey contracted with sufficient funds, and suffered those funds to be appropriated to other purposes. It was a violation of duty in either case. Tbe plaintiffs bave lost their labor and materials by it. Official neglect, and loss thereby to tbe plaintiffs specially, are thus made out. (Adsit v. Brady, 4 Hill, 630; Robinson v. Chamberlain, 34 N. Y., 389; Fulton Fire Insurance Co. v. Baldin, 37 id., 648.)

Tbe defendants, commissioners, made a contract with one Dunn to build tbe abutment on wbicb tbe bridge was to be placed, and tbe approaches to tbe bridge. This work was carried off by tbe flood, and tbe commissioners aver and prove tbat tbey were compelled to expend $3,651.08 in replacing it. I think tbe fact clearly irrelevant to tbe plaintiffs. Tbe defendants were bound to take such means as would provide for tbe execution of tbe contract by tbe Messrs. Dunn. Tbey might take security or tbey might pay after work completed and tests made, or in some other way. Tbe plaintiffs were charged with no duty in regard to it. Tbe defendants could not use tbe money appropriated to pay plaintiffs, to rebuild tbe abutments. Tbat would be incurring an obligation subsequent to plaintiff’s contract, whereby tbe fund appropriated to meet it was impaired.

■The judgment should be affirmed, with costs.

GxlbbRt, J., concurred; DyemaN, J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J.: Gilbert, J.:

text:
    SIDNEY H. STUART, Appellant, v. GEORGE W. PALMER, as Collector of Taxes of the Town of New Lots, and THE TOWN OF NEW LOTS, Respondents.

      Assessment for local vmqyrmement — notice to pa/rties affected by — when regui/red.

    Where an act of the legislature requires the expenses of a local improvement to be assessed upon the property benefited, no notice of the time and place at which the assessors will meet to hear persons to be affected thereby, nor of the completion of the assessment, is required to be given, unless required by the terms of the act itself.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    This was an action in equity, to vacate an assessment Imposed upon real estate of the plaintiff, on the ground that the same was a cloud upon his title thereto.

      James B. Adams, for the appellant.
    The assessment and lien thereof is void and should be vacated and set aside, because it was made, levied and confirmed without any notice to the plaintiff or other property holders affected thereby. (Laws of 1870, chap. 619, § 3; In the Matter of Ford, 6 Lans., 92; Ireland v, Oiiy of Boehester, 51 Barb., 414; Owners of Ground v. Mayor of Albany, 15 Wend., 375 ; Jordan v. Hyatt, 3 Barb., 275; In re Oomrs. of Oen. Park, 51 id., 277; Sharp v. Johnson, 4 Hill, 92 ; Oruger v. Dougherty, 43 N. Y., 119, 122; People ex rél. v. Hu/rTbu/rt, 46 id.,- 110; In re Flatbush Ave., 1 Barb., 286; Hopkins v. Mason, 42 How., 115; Jaeksonv. Healey, 20 Johns., 495; Fondav. Oanal Oomrs., 1 Wend., 288; Boélffwéíl v. Nea/ring, 35 N. Y., 302; Doubleday v. Newton, 9 ITow., 71; Sharp v. Spier, 4 Hill, 76; Fiteh v. Oomrs. of Highways, 22 Wend., 132; Taylor v. Porter, 4 Hill, 140.)

      O. J. Lowrey, for the respondents.
   Barnard, P. J.:

By chapter 217, Laws of 1869, as amended by chapter 619, Laws • of 1870, the legislature directs commissioners to be appointed by the Supreme Court, whose duty should be to open and lay out Atlantic avenue, in the city of Brooklyn. These commissioners were also to assess the value of the land taken, and to assess the amount of the award and expenses upon the lands and premises benefited. Before making the assessment and awards'public notice was required to be published in two or more public newspapers of the county of Kings, at least twenty days before the same were to be made, and of the time and place of meeting to make the same. There is no question made but that this notice was given. The report was made to the Supreme Court and the same was confirmed.

The act required the commissioners:

■ “ Section 4. Upon the confirmation of said report ” * * * the said commissioners shall be authorized to enter upon the lands and premises taken for said street or avenue, and cause the same to be properly regulated, graded, graveled, curbed, guttered, with crosswalks at intersecting streets, in such manner and in such place as shall in their judgment be necessary to make and preserve a suitable public street or avenue, and to assess the expenses of such regulating, grading, graveling, curbing, guttering, and crosswalks upon the lands and premises which, in their judgment, shall be benefited by such improvement, in proportion to the benefit accruing to them by reason thereof, the district of assessment to extend back as provided heretofore in this act. They shall certify such assessment with the names of the parties assessed to the supervisor of the said town, and the amount so assessed shall, together with interest at the rate of seven per cent per annum, from the time of making such assessment until the expiration of the warrant of the col'ection, be added by the supervisors of the county of Kings to, and make a part of the amount of taxes for the. ensuing year upon the lands and premises upon which they are assessed, respectively, and shall be a lien thereupon, and be levied and collected in the same manner as other taxes are required by law to be collected, and when collected to be applied to the payment of the bonds to be issued and provided for in this act.”

By the preceding section the district of assessment was made to be three hundred feet on each side from the avenue. The assessment in question was made against the plaintiff under the fourth section and was solely for improving the avenue. The commissioners, in making the assessment upon the strip of land for the improvement of the avenue under the fourth section, gave no notice of the meeting, and gave none whatever of the completion of the assessment, and gave no time for the presentation of grievances by those who were assessed. The question presented is, whether such omission to give notice was fatal to the assessment. The act required no notice of the assessment under this fourth section.

In Owners of Ground v. The Mayor (15 Wend., 374), it was held that only such notice need be given as was required by the act. The same principle was held in The People v. The Mayor (1 N. Y., 119). In the case before us no notice was required by the act. The exercise of a taxing power does not depend upon notice. It is an unlimited power. “ However absolute the right of an individual may be, it is still in the nature of that right that it must be as a portion of the public burthens, and that portion must be determined by the legislature.”

“ The only security against the' abuse of this power is found in the structure of the government itself. In imposing a tax the government acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property, and, as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right.” (The People v. The Mayor, 1 N. Y., 119.)

I think the judgment should be affirmed, with costs.

Gilbert, J.:

The complaint in this case was properly dismissed. 1. A suit in equity does not lie against a collector of taxes to set aside the tax. 2. The tax complained of forms a part of the county tax. The original apportionment of the cost of the improvement, and the assessment of the sums apportioned upon the property benefited thereby, was confirmed by this court. No objection to the confirmation of that report appears to have been taken, and, in the absence of proof, in a collateral action of this kind, we are bound to presume that no valid objection to the proceedings existed. 3. No notice of the proceeding to levy a county tax, other than the general provision of the statute requiring the assessors to keep the assessment rolls open for inspection and review during a specified period when the persons assessed may appear before them and make their objections, is necessary.

If the plaintiff has any remedy for the grievance of which he complains, it is very evident that this is not an appropriate one.

The judgment must be affirmed, with costs.

Present- — -Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


text:
    AUGUSTUS HILL, Respondent, v. THE HIBERNIA INSURANCE COMPANY OF OHIO, Appellants.

      Policy of imm'cmce — meaning of words “standing detached" in — evidence as to thei/r meaning among inswrance men, inadmissible.

    Defendant issued a policy of insurance upon plaintiff’s ‘ ‘ two-story frame dwelling, composition roof, standing detached on the west side of Bennett avenue.” The house stood about seven feet from another house. In an action to recover for a loss sustained under the policy, the defendant offered to prove that the words “standing detached” meant, “amongst insurance men generally,” that the house was at least twenty-five feet from external exposure.

      Meld, that the evidence was properly rejected; (1) because there was no ambiguity in the meaning of the words ; (2) because there was no offer to prove that the particular meaning sought to be given to these words was known to the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover the amount of a policy of insurance issued by the defendant upon a house belonging to the plaintiff, which had been burned.

      Wm. SulH/um, for the appellant.
    The terms “ standing detached,” when applied to a building insured, having acquired in the insurance business a peculiar and technical meaning, different from their ordinary meaning, should be construed according to their sense in the insurance business. (Green! on Ev. [12th ed.], §§ 278, 280, 292, 295 a; 2 Starkie on Ev. [5th Am. ed.], § 565; Hutchison v. Bowker, 5 M. & W., 535; Boorman v. Jenkins, 12 "Wend., 573; Dickenson v. Water Go-rnrs. of Poughkeepsie, 2 Hun, 615; Robert son v. French, 4 East, 135; OoitY. Oom. Ins. Oo., 7 Johns., 385; Goodyear v. Ogden, 4 Hill, 104; Damson v. Kettle, id., 106; Dalton v. Daniels, 2 Hilt., 472; Walls v. Bailey, 49 N. Y., 464; Miller v. Stevens, 1 Am. R., 139; Sweet v. Shumwcty, 3 id., 471; 5 id., 241, note; 6 id., 678, note; Brown v. Byrne, 77 Eng. Com. L., 702; 1 Smith’s Lead. Cases, by Hare & Wallace [6th Am. ed.], 828, et seq.; Hutchison v. Tatham, 6 Eng. R., by .Moák, 232; Appleman v. Fisher, 34 Md., 540; Whiting, v. Boardman, 118 Mass., 242; Wadley v. Dams, 63 Barb., 500; United States Dig., tit. “Usage;” Goodrich v. Stevens, 5 Bans., 230; Standard Oil Go. v. Trinmph Ins. Go., Ct. App., 1 Law and Equity, 512; Theory and Practice of Underwriting, by Rogers, p. 13 ; Alexander v. Germania Ins. Go., Ct. App., 5 Ins. Law Jour., 360, May number.) The evidence excluded is material to the issue. If “ standing detached” means at least twenty-five feet from external exposure, there is a breach of warranty and a material misrepresentation which relieve the defendant from all liability under the policy. (Flanders on Fire Ins., 204, 205, 208, 255; Bliss on Life Ins., 53, 54, 56, §§ 34, 37, 38; May on Ins., 160, 161; McLoon v. Mutical Ins. Go., 100 Mass., 472; 1 Am. R., 129; Ashworths. Builders'1 Mutual Fire Ins. Go., 3 Ins. Law Jour., 489 ; DeHahn v. Hartley, 1 Term R., 385; Fowler v. AEtna Fire Ins. Go., 6 Cow., 673; French v. Ghenango Mutual Ins. Go., 7 Hill, 122; Jermlngs v. Same, 2 Denio, 75 ; Burritt v. Saratoga Mutual Ins. Go., 5 Hill, 188; Mead v. Northwestern Ins. Go., 7 N. Y., 530; Ripley v. AEtna Ins. Go., 30 id., 136; Pierce v. Empire Ins. Go., 62 Barb., 636; Gushmam, v. D. S. life Ins. Go., 4 Hun, 784; Ghase v. Hamilton, 20 N. Y., 52; Benedict v. Ocean Ins. Go., 31 id., 394; Brice v. Lorillard Fire Ins. Go., 55 id., 240; Ghaffe v. Cattaraugus Go. Mutual Ins. Go., 18 id., 376; 3 Kent’s Com. [12th ed.], 376; 1 Parson’s on Con. [5th ed.], 433; Clark on Ins., 121; Burritt v. Saratoga Ins. Go., 5 Hill, 188; Ghase v. Hamilton, 20 N. Y., 52; Gazenove v. British Assur

      cmce Association, 6 0. B. [N. S.], 431; Anderson y. Fitzgerald, 4 House of Lords Cases, 484.)

      Fardel T. Walden, for the respondent.
    The language of the policy was plain; the words “ standing detached ” were not ambiguous, and therefore did not need any construction. "Where a clause in a policy is clear in itself it ought to be understood literally. (Marshall on Ins., 212; Reynolds v. Oom. F. Ins. Go., 41 N. Y., 605; Rcmn v. The Home Ins. Go., 59 id., 38Y; White v. Hudson R. Ins. Go., 15 How. Pr., 288, per Cady, J.; Hut. Ins. Go. v. Hone, 2 N. Y., 243, 244.)
   Barnard, P. J.:

The defendant issued to the plaintiff a policy of insurance on the 5th of January, 18Y4, to expire 'in one year. The' subject of the insurance was “ the two story frame dwelling, composition roof, standing detached on the west side of Bennett avenue, about 125 feet north of Duryea avenue, east New York, Long Island.”

The house was entirely destroyed on the lJth of June, 1814. At the time of the insurance this house was unoccupied, and so continued until the fire. The house stood about seven feet from another house. Upon the trial the defendant offered to show that the words “ standing detached” in a policy meant, “ amongst insurance men generally,” that the subject of the insurance should be at least twenty-five feet from external exposure. This offer was rejected, and the plaintiff had a verdict. The defendant makes two principal objections to the recovery:

First. That the word “ dwelling” in the policy imports a. warranty that the building was then occupied as a dwelling, and being broken, the policy was void.

Second. That it was error to exclude the evidence as to the special meaning of the words standing detached.”

The first objection under the evidence seems untenable, and hardly consistent with good faith. There was an application in writing for the policy. This application is in the defendant’s possession, and is not produced. Plaintiff’s agent, Bond, testifies that defendant’s agent, Carroll, wrote down the application, and that he, Bond, told bim that it, the house, was then unoccupied. H the policy had mentioned this paper, it would have been a part of the policy by its express terms. As it is, if the policy is made out different from the application, the policy should conform to it. Carroll, defendant’s agent, does not deny that there was a written application, but says that Bond left it —importing that Bond drew it. No matter who drew it, the evidence is conclusive, that the written paper contains a statement that the house was unoccupied. Bond says Carroll drew it from what he stated, and that the fact of the house being unoccupied was a part of it. Carroll says, I don’t remember Bond telling me so, but “ he left a written memorandum of what he wanted.” In filling out the-policy, Carroll was defendant’s agent, and his error in filling out the policy should not destroy the policy. (Rowley v. The Empire Insurance Company, 36 N. Y., 550.)

As to the second objection taken by defendants, there are two reasons why it should not prevail.

First. There is no ambiguity in the words “ standing detached.”

Second. There is no offer to prove that the particular meaning claimed for the words was known to the assured. "When the usuage is as to a particular trade or profession, a party to be bound by it “must be shown to have knowledge or notice of its existence.” ( Walls v. Baily, 49 N. Y., 464.)

I think the judgment should be affirmed, with costs.

Gilbert, J., concurred. Dykman, J., not sitting.

Gilbert, J.:

. The defense in this case seems to be entirely destitute of merit. The company received a verbal notice of the loss immediately after the fire, and nine days after the fire proofs of loss were served, which also contained a formal written notice of the loss. All these were received and retained without objection, and the company put its refusal to pay the loss upon other grounds than a non-compliance with the conditions of the policy in relation to these matters. Such conduct is a waiver of the strict performance of such conditions.

The building insured is described in the policy as a dwelling as and “ stcmdmg detachedI.” This is the language of the insurer. No survey or statement, showing whether the building was occupied or not, or tbe distance between it and adjacent buildings was required of tbe assured or furnished by him. Tbe insurance was effected through a broker, who had been engaged in that business twenty year’s. Tie testified that he informed the insurer before he effected the insurance that the building was vacant, and that he was willing to pay an extra premium on that account.

We think that the use of the word “ dwelling ” does not imply that the building is occupied, but if it does, the use of it by the insurer alone does not create a warranty by the assured. The question whether the fact that the building was vacant, was fraudulently suppressed by the assured, was fairly submitted to the jury, and their conclusion upon it is fully supported* by the evidence. The defendants having knowingly insured a vacant building, the condition, that if the building should afterwards become vacant, or unoccupied, without their assent indorsed on the policy, affords them no shield. That condition by its terms applies only to an insurance upon an occupied building, which is vacated after the insurance was effected.

The building did stand detached. It was seven feet from any other building. The attempt to show that the phrase “ standing detached ” meant that it was distant twenty-five feet, or thereabouts, from any other building, was properly rejected. The phrase is not in the slightest degree ambiguous, and extrinsic proof was not admissible to give it a meaning different. from its plain import. A new contract cannot be made in that way. (Reynolds v. Commerce Insurance Company, 47 N. Y., 605.)

We have discovered no error in the rulings upon the trial, or in the charge to the jury.

The judgment must be affirmed.

BaeNAKd, P. J., concurred. DyKMAN, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.: Dykman, J.

text:
    PETER VAIL, Respondent, v. IRA B. TUTHILL, Appellant.

      Judgment on accounting— Assmrvption of outstanding claim, operates as a tn'omsfm' of it — JMdrnce.
    This action was brought by the plaintiff to recover the value of certain wood sold to the' defendant, who, with one Deen, were manufacturing brick as assignees of one Horne. The wood was sold upon the agreement of the defendant to be personally responsible therefor. The defendant set up a counter-claim for bricks sold by him and Deen to the plaintiff. Upon the trial the court refused to receive in evidence a judgment recovered after the commencement of this action, in an action brought against the defendant, Tuthill, and Dean, as assignees for an accounting, in which Tuthill charged himself with the price of the brick as so much money received from the plaintiff. Held, that the judgment should have been received in evidence, although recovered after the commencement of this action, and that as it appeared thereby that the defendant had become the owner of the claim against the plaintiff, he was entitled to set it up as a counter-claim in this action. (Dykman, J., dissenting.)
    Appeajl from a judgment of tbe County Court of Suffolk county, affirming a judgment in favor of tbe plaintiff, recovered in a Justice’s Court.

      George Miller, for tbe appellant.

      Wm. Wiekham, for tbe respondent.
   Barnard, P. J.:

A Mr. Horne, wbo was a manufacturer of brick, of Robbins island, Suffolk county, became embarrassed and assigned bis. business to defendant and a Mr. Deen to close up tbe same, and from tbe proceeds to pay tbe laborers, and claims wbicb defendant Tutbill beld against Horne. Tutbill was tbe sole actor in tbe assignment. It seems a Mrs. Moffit was in some way bound to pay defendant’s claims against Horne, as security for Horne. Tbe assignment was made in October, 1873. Tbe plaintiff brought wood to tbe yard and exacted a personal liability upon tbe part of defendant to pay for tbe same. Tbe amount of wood and profit was $105.50. At tbe same time be received 12,000 bricks for tbe price of ninety-six dollars, leaving a balance of nine dollars and fifty cents, for wbicb be brings tbis suit. On the 10th November, 1873, tbe plaintiff received another 12,000 of brick at the price of ninety-six dollars, and the defendant seeks to set off this claim in' extinguishment of the plaintiff’s claim, and asks judgment for 'the balance. The plaintiff’s claim was undisputed. The defendant gave evidence tending to show that he was the sole acting assignee. That the property did not realize enough to pay his, defendant’s, claims. That the other claims in the assignment were all paid. That, in November, 1874, Mrs. Moffit commenced an action against him and Deen for an accounting under the assignment. That in the defendant Tuthill’s answer, he charged himself with this claim on the 4th December, 1873, as if the money had been received by him.

The action was not finally disposed of until after this action was tried before the justice, but resulted in a judgment based upon the defendant’s answer, as to the claim in question before the trial in the County Court. The court rejected the judgment roll. I think this was erroneous. The judgment determined the existence of the facts necessary to support it, even as against a stranger. The judgment was complete evidence of title to the demand. It was none the less evidence because it was recorded after the present action was commenced. The plaintiff had no title to be overreached by the decree. If he had, the decree would not affect him. As between Moffit, Horne, Deen and defendant, it established the title of defendant to his claim. (Fuller v. Van Geeson, 4 Hill, 171.)

The plaintiff’s wood was burned in the manufacture of the brick made at Bobbins island. It is really a claim legally against both assignees. The plaintiff gave the credit to defendant only, and therefore can sue him alone, but still equity and justice requires the offset if it can be legally made. By the aid of the judgment roll defendant would have such an equitable right to the claim, individually, as would permit the offset.

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

Dykman, J.

(dissenting):

This cause originated in a Justice’s Court, was afterwards tried on appeal in the County Court of Suffolk county, and now comes to us on appeal from the judgment rendered in favor of the plaintiff. The plaintiff’s claim is as follows;

Eighteen cords of wood, at four dollars and seventy-five cents ..........................'................. $85 50

Freight .......................................... 20 00

$105 50

Credit: Twelve thousand brick, at eight dollars........ 96 00

$9 50

The defendant’s claim against the plaintiff is as follows:

1873. October 10. Twelve thousand brick, at eight dollars, $96 00

1873. November 4. Twelve thousand brick, at eight dollars.......................................... 96 00

$192 00

Credit: Ten loads wood, four dollars and seventy-five cents per load......................... $85 50

By freight, twenty cords, at one dollar a cord.... 20 00 --

105 50

$86 50

It will be thus seen that the difference between the parties arises upon the 12,000 of brick of November 4, 1873. If the plaintiff is to be charged with these brick in this action, then the judgment is wrong, and must be reversed; but if the court was right in rejecting this item, then the judgment must be affirmed. The court decided that the only question to be submitted to the jury was the claim of the plaintiff in his complaint, and that all matters alleged in the defendant’s answer should be excluded from their consideration on the ground that the claim of the defendant was not an individual claim, but a claim in his favor jointly with William M. Deen.

There was no controversy over the plaintiff’s claim, and the court, at the close of the testimony, directed a verdict for the full amount of it in the plaintiff’s favor. The item of the defendant’s claim, which is thus rejected, was for brick from Bobins island. These brick, and all the other movable property on the island, were placed in the hands of the defendant and William M. Deen, as trustees, to be sold and disposed of by them and the proceeds applied by them in a certain way. The brick were not, therefore, the individual property of the defendant, and even though they were sold and delivered to the plaintiff, yet they were not the proper subject of a set-off in favor of the defendant in an action against him alone. He could not avail himself of this item as a set-off, any more than he could maintain an action on it in his own name alone. Nay, not so well, for as he had no individual interest in the claim at all, he could not be permitted to make use of it to extinguish a personal claim against himself individually. The County Court, however, rejected the claim as an offset or counter-claim, on the broad ground that the defendant was not the sole owner of the claim. The defendant attempted to avoid this difficulty by showing that he had rendered an account as such trustee, and that the two items of brick, which he had charged to the plaintiff, had been charged to himself in these accounts, and that he had become personally liable for them, or rather had assumed them in such accounting.

There are two answers to this proposition. The first is, that if the defendant ever did become liable to pay these items as between himself and his principal, it was not until after the commencement of this action, and they were not valid and existing claims in his hands at the time of the commencement of this action, and they must have been such to make them the proper subject of offset in this action. In the next place, even though the defendant did render an account of his transaction as such trustee, in which he charged himself with these two items, and thus became liable for their payment, as between himself and his principal, did that give him such a title to these items as enabled him to use them in an action in any way; could he maintain an action upon them in his own name ? We think not, but it is not necessary now to decide the question.

We think, therefore, that it results from this examination that there was nothing for the jury, and that the county judge was right in directing a verdict for the plaintiff.

Judgment affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


author: Gtrbert, J.:

text:
    ROBERT P. KNAPP, Appellant, v. ALFRED B. POST, Respondent.

      Setting aside judgment — not granted, on a second, motion, after denial of motion for new trial on judge’s minutes.

    After a motion for a new trial has been made upon the minutes of the justice before whom the action was tried, and by him denied, it is error for another justice to entertain and grant another motion to set aside the judgment on the ground of “error and manifest injustice.”
    A new trial can only be granted in such a case upon an appeal from the first order.
    Appear from an order made at Special Term setting aside and vacating a judgment in this action, and granting a new trial.

      George W. Green, for the appellant.

      Baeon <& JDwryea, for the respondent.
   Gtrbert, J.:

This action was tried before Mr. Justice Barnard and a jury, and resulted in a verdict for the plaintiff. At the close of the trial the defendant moved for a new trial on the minutes. Such motion was argued on a subsequent day, and denied. Thereupon, judgment was ' entered November 2i, 1875. In January following, the defendant made a motion before Mr. Justice Dykman upon all papers and proceedings in the cause and upon affidavits, for a new trial, on the ground of surprise, newly discovered evidence, manifest injustice and error in the evidence and verdict of the jury. That motion was denied January 10, 1876, without prejudice to the right of the defendant to make the same motion on the ease made, as might be proper. Afterward the case was settled. Then the defendant moved, before Mr. Justice Dykman, upon that, together with the papers used on the preceding motion, for a new trial upon other grounds, namely: error and mistake in the witnesses, and of manifest injustice having been done the defendant by the evidence and verdict. This motion was granted, and the plaintiff’s judgment was vacated.

It will thus be seen that, after a motion upon the minutes had been denied by tbe judge wbo tried tbe cause, and after a motion on the ground of surprise and newly discovered evidence had been denied by Judge Dykman, the last-named judge made the order appealed from, on the ground of error and manifest injustice.

Ve are of opinion that the proceeding is altogether erroneous. It was nothing more than a retrial of the cause upon affidavits. If the practice here pursued should be authoritatively established, few verdicts would stand. It costs defeated parties little effort to show by ex parte affidavits that their defeat is attributable to error and manifest injustice, rather than their own neglect or mistakes, and it is far easier to get rid of a verdict and judgment in that way than by appeal. But the law does not allow such a practice. The first motion before Judge Dykman was properly made and properly disposed of, for no case of surprise or of newly-discovered evidence, within the legal meaning of those terms, was shown; or if not properly disposed of, the remedy was by appeal from the order. The last motion was simply an appeal from Judge Barnard to Judge Dykman, unless, indeed, “error and manifest injustice” in a" judgment may be shown by affidavit, which, as already said, the law does not allow. The remedy of the. party injured by such error and injustice is by appeal. (Kamp v. Kamp, 59 N. Y., 212.)

The order appealed from should be reversed with ten dollars costs and disbursements, and the clerk should be directed to -reinstate the judgment.

Donohue, J., concurred.

Present — Gilbert and Donohue, JJ.

Order reversed, with costs and disbursements.


author: Gilbert, J.:

text:
    MICHAEL DONOHUE, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Contract — Error in certificate of engineer as to price— Yohmtarry payment — ■ Corporation — not bound, by una/uthorized payment by agents — Negotiable cei'tificaJes of indebtedness — effect of trcmsfer thereof.

    The plaintiff’s assignor entered into a contract with the trustees of the town of Morrisania, by which he was to receive fifty cents per yard for all filling made thereunder. Subsequently the engineer gave a certificate in which the price was stated at seventy-five cents per yard, and certificates of indebtedness for the amounts of the bills so certified were issued by the board of trustees of the said town. Held, that as the engineer and trustees were only the agents of the corporation, it was not bound by their unauthorized acts, and that the payment could not therefore be regarded as a voluntary one.
    Negotiable certificates of indebtedness were issued to the contractor, who thereafter transferred them to purchasers in good faith. Held, that he thereby made himself liable for the value of the certificates so transferred.
    Ajppeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbis action was brought by plaintiff, as assignee of Patrick Handibode, to recover a balance of $4,547.40, alleged to be due on a contract made November 6, 1872, between tbe trustees of tbe town of Morrisania and said Handibode, for grading One Hundred and Thirty-sixth street.
    Tbe defendant set up in its answer, as a counter-claim, tbat plaintiff, at tbe time of tbe indebtedness alleged, was tbe assignee of said Handibode, in another contract made between tbe same parties for grading One Hundred and Eorty-fifth street, and bad, “through error and mistake of fact,” received from tbe defendants an excess over what was due him of $2,200.
    It appeared upon tbe trial, tbat by tbe terms of tbe written contract for grading One Hundred and Eorty-fifth street, tbe contractor was entitled to receive for furnishing and depositing earth filling, fifty cents per cubic yard. Tbat tbe engineer in charge of tbe work bad certified an embankment, necessarily thus constructed thereon, as containing 10,969 cubic yards, at tbe price of seventy-five cents, instead of fifty cents per cubic yard, making an erroneous excess in plaintiff’s favor of $2,742.25. That thereafter, and on November 12, 1873, the board of trustees issued eight certificates of indebtedness on account of said work, to the contractor, the aggregate amount whereof ($3,410.29) more than covers the amount of said mistake, and that the same were delivered to him, and subsequently transferred to a bona fide purchaser for full value, before the maturity thereof.
    The referee refused to allow the defendant’s counter-claim.

      A. J. Reqwier, for the appellants.

      Nerrmg c& Samson, for the respondent.
   Gilbert, J.:

The case clearly shows that the plaintiff received the over-payment which is the subject of the counter-claim, and the referee should have so found. The error arose from the fact that the engineer in charge of the work done by the plaintiff and his assignor, certified seventy-five cents instead of fifty cents per yard for filling, the latter sum being the contract-price. The engineer had no authority to give a certificate, nor the board of trastees to make a payment in excess of the contract-price. They were respectively mere agents of the corporation, and their principal was not bound by their unauthorized acts. Such a payment is not a voluntary one by the corporation. The case of Board of Supervisors v. Ellis (59 N. Y., 620) is a full authority on this point.

It appears that the plaintiff received the over-payment in the form of negotiable certificates of indebtedness, whereby the corporation became bound to pay the amount thereof at a future day, and that he immediately transferred them to a purchaser in good faith and for value. The corporation has thus been deprived by the act of the plaintiff of any defense to its liability on the certificates (Seybel v. Nat. Currency Bk., 54 N. Y., 298; McSpedon v. Troy City Bh., 3 Abb. Ct. App. Dec., 133), and such act is conclusive that the plaintiff appropriated them as a payment upon his contract. (Herring v. Sanger, 3 Johns. Gas., 72; Elwood v. Deifendorf, 5 Barb., 408.) But, whether treated as a technical payment or not, the plaintiff is clearly liable for the value of the certificates by reason of his having parted with them, and so put it out of his power to return them to the defendant.

The judgment must be reversed, the order of reference vacated and a new trial granted, with costs to abide the event.

Barnard, P. J., and Dykhan, J., concurred.

Judgment reversed and new trial granted at Circuit.


text:
    RICHARD S. VAN WYCK, Respondent, v. LOUISA M. BAKER and EMILE BENEVILLE, Appellants.

      Fraudulent conveyance — remedy of creditor — power of cowrt to direct a sale by its officers of real estate fraudulently conveyed.

    The Supreme Court has no power to effect a transfer of the title to land by directing a sale thereof by its officers, except in special cases authorized by the statutes of the State.
    In suits by creditors to reach lands conveyed with intent to defraud them, the decree should set aside the fraudulent conveyance and permit the creditor to issue an execution and sell thereunder, or compel the debtor to convey to a receiver, and order the latter to sell.
    Appeal from a' judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was brought by a judgment creditor of the defendant Louisa M. Baker, to set aside, as fraudulent, a conveyance of certain real estate from her to the defendant Emile Beneville.
    The court found that for some years prior to the conveyance the defendant Baker was indebted to the defendant Beneville in the sum of $1,015, with interest on portions thereof, from different times; that the conveyance was executed with the intent to hinder, delay and defraud creditors, and adjudged that the deed was fraudulent and should be canceled; that the premises should be sold by the sheriff of "Westchester county; that from the proceeds of sale there be paid to the defendant Beneville the amount due to him; that from the balance of said proceeds there should be paid to the plaintiff the amount of his debt, and any balance remaining should be paid to the judgment debtor.

      Israel Minor, Jr., for the appellants.

      John Gibney, for the respondent.
   Gilbert, J.:

The judgment is erroneous in ordering a sale of the real estate without providing for a conveyance by the judgment debtor, and in directing the balance of the proceeds, after paying the plaintiff and Beneville, to be paid to the judgment debtor. The court has no power to effect a transfer of title to lands in that way, except in special cases authorized by statute, such as mortgage and partition cases, sales of infants’ lands, ordinary execution sales and the like. In suits by creditors to reach lands conveyed with intent to defraud them, the proper decree is to set aside the fraudulent conveyance, and permit the creditor to issue an execution, and sell under that, or compel the debtor to convey to a receiver, and order the latter to sell. The fraudulent deed being annulled, the title remains in the debtor, and can be passed only by her deed. (Jackson v. Edwards, 1 Paige, 404; Bank v. White, 2 Seld., 236; Bank v. Risley, 19 N. Y., 369.) The deed from the judgment debtor to Beneville, if fraudulent, was not void, but voidable only at the election of creditors. It was valid between the parties to it. The defendant Beneville, in any view of the case, therefore, would be entitled to all that might remain of the land or the proceeds thereof, after satisfying the claim of the plaintiff. We might modify the judgment in the particulars referred to, but we are not satisfied that the evidence is sufficient to warrant a decree annulling the deed on the ground of the fraud upon creditors alleged.

The judgment, therefore, will be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., concurred. Dykman, J., not sitting.

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