author: Landon, J. Learned, P. J.

text:
    In the Matter of the Petition of the President, etc., of the Delaware & Hudson Canal Co.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Municipal corporations—Assessments—Power op legislature to VALIDATE AN ASSESSMENT —LETTING TO THE HIGHEST BIDDER NOT NECESSARILY EVIDENCE OP PRAUD.
    The new charter of Albany, chap. 298, Laws 1883, declares that all assessments not in litigation on January 15, 1883, shall be valid. An assessment for paving in said city was made an,d confirmed and not attacked before said act was passed. Thereafter proceedings under the new charter were begun before the county judge to vacate it for irregularities and also because, as alleged, the work was fraudulently let to the highest bidder. Held, assuming that the county judge had jurisdiction, that the legislature had power to legalize the assessment, the only limitation to its power in this direction being that it cannot deprive the individual of his right to be heard by the proper authority upon the apportionment of an assessment. That inasmuch as the old charter of said city did not require that the work should be let to the lowest bidder, a letting to the highest bidder without proof that the sum levied was thereby unlawfully increased did not justify a finding that there resulted therefrom a fraudulent addition to the cost.
    Appeal from an order and decree of the Albany county judge, vacating an assessment for paving, grading and draining a portion of South Pearl street, in the city of Albany.
    The improvement was made pursuant to an ordinance of the common council of the city of Albany, passed April 30, 1880. After the work was completed, and on October 15, 1881, the apportionment and assessment were made and confirmed, and pursuant to chap. 290, Laws of 1880, payment of the assessment was extended for five years. In April, 1883, chap. 298 of the laws of that year was passed. It created a new charter for the city of Albany. 'These proceedings were instituted under title 11 of the n ew charter. The first section of the eleventh title provides that “ No assessment that may hereafter be levied shall be void, or shall be vacated by any court because of the failure on the part of a contractpr to comply with all the requirements of law or the contract in respect thereto,” and then provides a remedy for such failure, provided, among other things, the owner or taxpayer aggrieved, “within twenty days after the confirmation of the assessment, take the proceedings mentioned in the next section.” The section thus concludes: “And all assessments heretofore levied in the city of Albany, proceedings to vacate, rpview or set aside which were not pending January 15, 1883, are hereby validated and confirmed.” The other sections of this title are as follows:
    “ § 2. If in the proceedings relative to any assessment or assessments for local improvements in the city of Albany, or in the proceedings to collect the same, any fraud or defect in the work or substantial error shall be alleged to exist or have been committed, the party aggrieved thereby may apply to have the assessment vacated or reduced, or both, to a judge of the supreme court, at special term or at chambers, or to the county judge, who shall thereupon, upon due notice to the counsel of the corporation of said city and to the contractor and his sureties, or any other person, if they, or either of them, be proper parties, proceed forthwith to hear the proofs and allegations of the parties.
    “ § 3. If after such hearing it shall be finally decided that the alleged 'fraud or defect in the work or substantial error exists or has been committed, the said assessment shall be vacated, except as hereinbefore otherwise provided, and the lien created thereby, or by any subsequent proceeding, shall, except as hereinbefore otherwise provided, cease; and hereafter no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of any assessment in said city or to remove a cloud upon title arising from any assessment hereafter made. In case the assessment shall not be vacated, the assessment may be reduced or judgment may be given as hereinbefore provided. Owners of property shall hereafter, -in proceedings to reduce or vacate or stay payment of assessments, be confined to the form of proceeding in this title mentioned. The court may, in a proper case in proceedings under this title, direct that any issue or issues of fact be tried before a jury.”
    The petition upon which the county 'judge assumed jurisdiction alleged (1) That chap. 77 of the Laws of 1870 under which the assessment was made is unconstitutional and void. (2) That no petition for an ordinance for such improvement signed by persons owning not less than one-third of the number of feet fronting both sides of the street, appearing on the annual tax rolls on file in the office of the receiver of taxes, was ever presented to the common council as required by § 19" of said act as amended by chap. 536 of the Laws of 1871; and no notice of such proposed ordinance, stating the kind of work and inviting parties interested therein to present their objections, if any, thereto, was ever published for five days in the official newspapers before its final passage, as also required by the same section of the aforesaid act. (3) That the ordinance was not passed as required by said act and subsequent acts amendatory thereof, and was not approved by the mayor as required thereby. (4) That an ordinance of the common council of the city required the publication of a notice by the street commissioner for bids or proposals for doing the work in the official papers for five consecutive times before any contract was awarded, unless a different publication should be specially ordered by the board of contract and apportionment, and in this case such an order was made by the board requiring a publication of the notice for fifteen days, but such notice was not published the number of times thus required, nor in form or substance as required by such ordinance or order aforesaid. (5) That the contract for said work was fraudulently and illegally awarded by the board of contract and apportionment to James X. Brady, who was the highest and not the lowest bidder, contrary to the duty and the standing rule of the board, and a contract thereupon illegally and fraudulently entered into with said James X. Brady and Thomas McCarty, the latter of whom had offered no bid or proposal for the work, whereby the expense of the improvement was increased in the sum of $30,000, which was illegally included in the assessment, and the burden thus proportionately increased against the property owners, including the petitioner. (6) That the terms of the contract in respect to materials and the manner of doing the work were not performed; so that the total value of the work and materials did not exceed the sum of $20,000. (7) That the board, nevertheless, estimated and determined the expense of the improvement at $61,694.85. (8) That the board and city officers in making the apportionment and assessment failed to comply with the city charter in ratifying ánd approving it as preferred by the •clerk without examination, and in not apportioning it among the houses and lots in proportion to the benefits received, as well as in not verifying it, and not publishing the notice of the assessment as required, and legally confirming the same. (9) That these -frauds and irregularities do not appear on the face of the proceedings.
    The answer denied the alleged frauds and irregularities, and averred that all the proceedings were legal and regular.
    The proceeding was instituted under § 2, of title XI, of chapter 398, of the Laws of 1883, above quoted. The county judge found all the principal issues in favor of the petitioner, and vacated the •assessment.

      D. C. Herrick, for app’lt; E. J. Meegan and E. Countryman, for resp’t.
   Landon, J.

It was intended by title XI of the new charter .above set forth to accomplish these results:

1. To prevent for the future the vacation of an assessment because of the failure on the part of the contractor to make strict performance, but to make the contractor and his bondsmen liable for his default, and to reduce the amount of the assessment if justice should require it.
2. To validate and confirm all assessments levied prior to January 15, 1883, as to which no litigation was then pending.
3. To preserve existing remedies as to such pending litigation.
4. To'provide a new remedy for future cases, and to abolish the existing remedy as to them
5. To forbid any remedy as to past assessments declared by the act to be validated and confirmed.

The present assessment falls within the class last mentioned.

Prior to the enactment of the statute the existing remedy was by an action in equity to vacate the assessment or remove the cloud cast by it upon the title.

The third section of the title forbids resort to an action in equity for such purpose, but only in respect to assessments thereafter made.

It is claimed that the new remedy applies to this case. But it is obvious that the legislature did not suppose any remedy was applicable or could be effectual to invalidate an assessment which it declared validated. It contemplated three classes of cases:

1. Past assessments in litigation.
2. Past assessments not in litigation.
3. Future assessments.

It preserved existing remedies as to the first class; provided a new remedy for the third class; and intended to validate and confirm the second class, and thereby dispense with the necessity of. any remedy.

If the declared validation did in fact validate this assessment, then no remedy could avail, and this proceeding would fail.

If it did not validate it, since the new remedy is applicable to future assessments, and the previous equitable remedy is neither prohibited as to past cases, nor expressly abolished, it still exists. It is simply a failure to apply the new, or supersede the old remedy as to past assessments not in litigation January 15, 1883. Where the right exists, if the remedy is omitted from the statute,, it is left to the common law, or if that is inadequate, -to equity. Broom's Legal Maxims, 46 ; Ewer v. Jones, 2 Salk., 415 ; Dudley v. Mayhew, 3 N. Y., 9.

We do not think the county judge had jurisdiction. But if we. assume that the county judge had jurisdiction of the proceeding, the question is presented whether the first section of title eleven of the new charter, which provides: “ And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside which were not pending January 15, 1883, are hereby validated and confirmed ” did validate the assessment in question.

If the legislature had the power to validate and confirm this assessment, then the county judge could not subsequently vacate it. It would be like trying a prisoner for crime after he had been pardoned for its commission.

This assessment did not come before the county judge simply as the act of the municipal authorities. It came with the added sanction of what purports to be legislative confirmation.

Unless there is some constitutional restriction the validating' section of the charter did validate this assessment.

That the legislature could have originally authorized the proceedings which were taken in this case there is no doubt. Spencer v. Merchant, 100 N. Y., 585 ; Genet v. City of Brooklyn, 99 id., 296; Matter of Van Antwerp, 56 id., 261.

The proceedings it could originally authorize it could subsequently ratify. People v. Turner, 117 N. Y., 237; 27 N. Y. State Rep., 158; Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39.

The limitation upon the legislative power to impose taxation is, that it shall pass no act which shall deprive any person of his property without due process of law. Remsen v. Wheeler, 105 N. Y., 573; 8 N. Y. State Rep., 202; Stuart v. Palmer, 74 N. Y., 183.

The individual has no constitutional right to be heard upon the question whether the law, either state or municipal, directing the imposition of a tax or local assessment, shall be enacted, but he has a right to be heard as to what proportion of the tax or assessment shall be imposed upon him or his property. Id. It is for the government to determine for what public purposes a tax shall be imposed, and upon what districts, or persons, but every individual has a right to be heard with reference to the basis of his own contribution to the public burden; if based upon his property, what property, and its proportion by value, frontage, benefits received, or otherwise, to the other like property included within the assessment

It therefore follows that it is no objection to the legislative validation of this assessment that the petition for the ordinance for the improvement was insufficiently signed. The legislature could have dispensed with the petition in the first instance, and therefore could validate an assessment based upon an imperfect one. In the town bonding cases for aid to railroads, it was held that the consent of the towns or of any portion of the tax payers thereof was not a necessary condition precedent to the legislative power to authorize the issue of the bonds and to provide for their payment. Hence bonds issued without the consent required by the original statutes were validated. People v. Mitchell, 35 N. Y., 551; Town of Duanesburgh v. Jenkins, 57 id., 177 ; Williams v. Town of Duanesburgh, 66 id., 129.

Most of the objections above specified in the petition under which this proceeding was instituted were mere irregularities which it was competent for the legislature to cure. It is objected that if under the statute then existing the proper jurisdictional steps were not taken, the common council had no jurisdiction, and all subsequent proceedings were void. Such an objection would no doubt be valid if there were no validating statute. But the ample jurisdiction of the legislature over the whole subject of taxation enables it to make and impose by its own statutory command a complete assessment, save only in the respect of providing that the individual shall be heard by the proper authority with respect to its apportionment. Spencer v. Merchant, supra. The defect in the jurisdiction of the common council, if any, becomes immaterial when the legislature assumes within its constitutional limitations jurisdiction of the entire matter. It is for the same reason unnecessary to inquire whether chap. 77 of the Laws of 1870 under which the assessment was made was constitutional. An assault upon that act does not touch the validating act, if it is free from tire like objection.

The statute did not require that the work should be let to the lowest bidder. We do not hold that the legislature could ratify a tax or assessment which, in addition to the sums necessary for the public purpose, concealed a gratuity to individuals or a fraudulent increase for private or official plunder, for as to such excess the individual taxpayer would be deprived of his property without due process of law. But the evidence does not show that the sum proper to be levied was increased by such an unlawful increment. It does show that the contract was not awarded to the lowest bidder; that fact might create suspicion, but it is consistent also with honest action. Something more is needed to justify a finding of fraudulent addition.

The notice of the apportionment is criticised, not that it was deceptive or misleading, but that it was not published for fifteen full days in literal compliance with the'terms of the statute. The legislature could have authorized its publication for less than fifteen days, and hence its ratification is effective.

A sewer was embraced in the improvement. The charter did not require the same steps to be taken to confer jurisdiction to construct sewers as to pave streets. Its expense was apportioned at the same time as that for the paving, etc., and the notice of the apportionment was “ of the expense for paving, grading, draining, etc., South Pearl street," etc. We perceive no objection to the notice or apportionment which is beyond the cure of the statute.

The order and decree must be reversed, with costs, and the proceedings dismissed, with costs in the court below.

There are thirty-eight other cases dependent upon this one; we reverse the orders and decree of the court below in each case and dismiss the proceeding, without costs.

Mayhah, J., concurs.

Learned, P. J.

Chapter 298, Laws of 1883, is the law establishing the city government of Albany; in ordinary language, its charter.

Title 11 of that chapter is entitled “Reducing and vacating assessments.” Its first section begins, “ Bo assessment that may be hereafter levied shall be void, or shall be vacated by any court, because of a,failure on the part of the contractor to comply,” etc. It then provides for proceedings by taxpayers and owners, during the progress of the work, to prevent payment to the contractor if his work is not properly done. And it closes with the words “And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside which were not pending January 15, 1883, are hereby validated and confirmed.” The act was passed April 23d.

The second section of the title provides that if in the proceedings relative to any assessments in the city, any fraud or defect in the work or substantial error shall be alleged, the party aggrieved may apply to a judge of the supreme court'or to the county judge to have the assessment vacated.

Section 3 provides that in such proceeding the assessment may be vacated. “ And hereafter no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of an assessment in said city or to remove a cloud upon title arising from any assessment hereafter made.”

“ Owners of property shall hereafter in proceedings to reduce or vacate or stay payment of assessments be confined to the form of proceeding in this title mentioned.”

Section 1 of this title by its terms applies only to assessments made after the passage of the act.

Section 2 which authorizes proceedings of the kind. taken in this case does not expressly say to what assessments it is applicable.

But section 3 in its first sentence declares what may be done in proceedings thus taken and the same sentence contains the words above quoted, prohibiting thereafter any suit to vacate or to remove a cloud upon title arising from any assessment thereafter made. It is plain then that the prohibitory clause applies only to suits in respect to assessments thereafter to be made.

Since then the ground of the prohibition is the establishing of a new and peculiar remedy, it must be that the new and peculiar remedy applies to the cases as to which actions are prohibited and not to any other.

To say that a part of a sentence applies to all cases, and the conclusion only to cases thereafter arising is unreasonable, unless the language compels such a construction. And when the evident ground of the prohibition of actions is the substitution of a different mode of relief, it is obvious that the substituted relief and the prohibition are co-extensive. If the prohibition applies only to assessments thereafter made, so does the substituted remedy.

Otherwise we have this condition, that as to assessments made before the act the aggrieved party may adopt either the remedy taken in this case or the action in equity or at law as the case may be; while as to assessments made after the passage of the act he is confined to the remedy taken in this case.

Then follows the other clause above quoted, that “ owners of property shall hereafter, etc.” Now it is true that this clause does not say “ assessments hereafter made,” but speaks generally of assessments. Still we have the word “ hereafter,” and we must construe the clause with reference to the preceding clauses, of which it seems to be a repetition. The previous clause had prohibited an action to vacate an assessment or to remove a cloud where the assessment was thereafter made. This clause repeats the idea that owners of property shall hereafter be confined to the new proceeding; that is, in regard to assessments in respect to which actions are prohibited.

Now if we turn back to § 1 we find that all assessments heretofore levied (with certain exceptions immaterial to this case) are validated and confirmed. Without inquiring then at the present time as to the legal effect of this clause, we can plainly see the intention of the legislature as to subsequent clauses. It cannot be that the legislature declared all assessments theretofore levied to be validated and confirmed, and then went on .to establish a procedure for invalidating the very assessments' which they had ‘ just declared to be valid. Even. if that validating clause had no legal effect in its operation, still it would show that the subsequent clauses giving a mode for vacating assessments could not have been intended to apply to assessments already levied, which were declared to be validated and confirmed. Such a construction would make the legislature guilty of a palpable inconsistency in first declaring all previous assessments valid and confirmed and then saying that owners of property may take certain specified proceedings to vacate these assessments. Evidently then the legislature could not have meant this.

All inconsistency is -however removed when we construe the subsequent provisions to apply like the first sentence in § 1, to assessments thereafter levied. Thus we shall also follow the ordinary rule that a retroactive effect is not to be given, unless the language expressly requires it. Whitney v. Thomas, 23 N. Y., 281. In this view the present proceeding was unauthorized, as the assessment was levied before the passage of the act.

Further as to the effect of the validating clause. In Ensign v. Barse, 107 N. Y., at 346 ; 12 N. Y. State Rep., 39, the very important and sensible distinction is stated between defects which are jurisdictional under the law as it stood when the proceeding was had, and those other defects which are so jurisdictional that the legislature could not have dispensed with what was lacking, and therefore could not cure the omission by subsequent legislation. For instance, a man’s property cannot be taken away with- ( out due process of law, including notice to him. A proceeding, therefore, even in the mode provided by law, which was defective in this respect, could not be validated. To validate it would be ■to violate a constitutional right. '

On the other hand, the legislature may authorize cities to improve streets with or without petition of adjacent owners. The legislature may leave it in the absolute discretion of the city authorities whether and how they shall grade, pave and sewer the streets. If the legislature has required the presentation of a petition of certain persons before the city authorities shall do these acts, the legislature may say that these acts shall be valid, although such petition was not fully obtained.

In People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158, the question was as to the title of land, and this question arose as to a title acquired under an assessment; it was held that a statute was valid which limited in effect the time within which the validity of the assessment sale could be questioned.

In People ex rel. Hays v. Brooklyn, 71 N. Y., 495, the court concede the power of the legislature to legalize assessments, but say that the language of the section is too loose and indefinite to include those in question. The section under discussion provided for the reducing assessments and the confirmation of those reduced. And the court did not decide that an assessment could not be confirmed when the petition was insufficient.

In Clementi v. Jadcson, 92 N. Y., 591, it was held that the validating act only validated the taxes sub modo and not the sales. Lennon v. Mayor, 55 N.Y., 361, does not pass upon the question involved here.

Admitting then for the purpose of the argument that the petition in the present case was not sufficient to authorize the common council to act, is there any reason why the legislature may not declare the action of the common council to be nevertheless valid ? This action of the common council is not judicial; it is executive or administrative.- If the common council were a court to decide between the parties, and one party had not been heard, very possibly the legislature could not validate the act. But that is not this case. The restriction on the common council that a petition with a certain number of signers must be presented touches no constitutional right. It might have been dispensed with by the legislature. And if the legislature might have dispensed with that restriction originally, then they have the power to say that its omission shall not invalidate the act, unless it were required by the constitution.

On the question of fraud the case of Dederer v. Voorhies, 81 N. Y., 153, was decided on the peculiar language of the validating act which only declared the assessment regular notwithstanding any irregularity in form and substance. This was held not to include actual fraud. ■ The language in this act has no limitation; all assessments are hereby validated and confirmed.” If the act has any force it must cover every objection, not constitutional, which could be made.

I concur, therefore, in the reversal of the orders as stated by my brother Landon in his opinion.


source: Caselaw Access Project

author: Landon, J. Learned, P. J. (dissenting.)

license: Public Domain

text:
    Mary Birch Reid, Resp’t, v. The Board of Supervisors of Albany County, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Taxes—Effect of purchase of lands under a statutory sale— Statute impadrinq- a contract.
    In the years 1875 to 1883 the person from whom the plaintiff takes title purchased lands at tax sales. In June, 1887, the court of appeals in a similar case held the sale void. In December, 1889, the purchaser applied for reimbursement, which was refused by the board. In September, 1890, this action was brought to recover the purchase money. Meld, that the provision as to reimbursement in chap. 86, Laws of 1850, was an invitation to the purchaser to pay his money upon the terms expressed therein, and that upon such sale a contract was made with him whose terms were defined by the statute. That the amendment of 1889 limiting the time of reimbursement to six years from the time of the sale impaired the obligation of a contract and was therefore void so far as it was sought to apply it to the sales had before 1889.
    3. Same—Limitation—When demand complete.
    The right of action here depended not only upon the irregularity or error but also upon the refusal (in December, 1889) of the board to reimburse ; and assuming under Code Civ. Pro., § 410, a demand by the pur-

      chaser to he necessary, “the right to make the demand” was not “ complete” until the decision oí the court oí appeals in 1887, and consequently the action was not harred hy Code Civ. Pro., § 882, which fixes a six years limit to an action to recover upon a statutory liability.
    (Leakned, P. J., dissents.)
    Appeal from a judgment entered upon the decision of the court upon the trial at the Albany circuit.
    In the years 1875 to 1882, both inclusive, William Eeid purchased various parcels of land at tax sales thereof made for the non-payment of taxes by the county treasurer of the county of Albany, under chapter 86, Laws of 1850, and the acts amendatory thereof, and received certificates and deeds therefor issued to him in accordance with the terms of the act.
    Eeid paid to the county treasurer, for and in consideration pf such sales, certificates and deeds, the aggregate sum of $3,774.08, which was turned over by said treasurer into the general funds of the county. Section 52 of the act of 1850 read as follows at the time of the sales and until June, 1889:
    “ Sec. 52. Whenever any purchaser under such sale shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the board of supervisors of the said county shall reimburse the purchase money so paid, with interest; .and upon their refusal or neglect to do so the same may be recovered by an action against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose not otherwise specifically appropriated, upon the production of a certified copy of the judgment; and if he have no such moneys in his hands, then the same shall be added to the amount of taxes to be levied on the city of Albany, and collected in the same manner as other contingent expenses, and when collected, shall be paid over to such purchaser.”
    Eeid was unable to recover possession of any of said parcels of real estate so sold to him by reason of errors and irregularities in the assessment thereof and in the levying of the taxes for which-said several sales were made, and in the proceedings for the collection of the taxes, but such inability was not known or regarded as established until June, 1887. The complaint alleges: “ That such sales were declared irregular and void by the court of appeals of this state on or about June 7, 1887, as plaintiff is informed and believes.” This allegation is not controverted by the answer. Eeid ■died in January, 1888, and under his will the plaintiff became the owner of the deeds and certificates, and of whatever rights Eeid had in respect to them.
    In June, 1889, by chap. 429 of the Laws of that year, § 52, above quoted, was amended by changing the clause thereof which read, “ the board of supervisors of the said county shall reimburse the purchase money so paid, with interest,” etc., so as to make it read: “ The board of supervisors of the said county shall at any time within six years from such sale reimburse the purchase money so paid, with interest,” etc. In December, 1889, the plaintiff applied to the defendant to be reimbursed the purchase money so paid by said Eeid, with interest, but the defendant refused. This action was cbmmenced September 2, 1890. The defendant, by its answer, set up the statute of limitations of six years as to the entire cause of action, of ten years as to so much of it as accrued before September, 1880, and the limitation contained in the amendment of § 52, above quoted.
    The court found the facts substantially as above set forth, and gave plaintiff judgment for the amount claimed, with interest

      Hugh Reilly, for app’lt; James C. Matthews (D. C. Herrick, of counsel), for resp’t.
   Landon, J.

When the state by statute invites any one to pay his money upon the terms expressed in the statute, and the proposition is accepted and the money paid, a contract is thereby made, and the statute defines its terms. Woodruff v. Trapnall, 10 How., U. S., 190; Furman v. Nichol, 8 Wall, 44; McGahey v. Virginia, 135 U. S., 662.

Such a contract was made between the state and Eeid. He made his purchase at the tax sales, and paid his money in acceptance of the terms extended to him in the statute of Í850, chap. ■86, and relying upon its provisions. That statute formed the terms of the contract, and was expressly referred to in the certificate of sale which the authorized officer of the state, acting in the county of Albany, executed and delivered to him. The state could pass no law impairing the obligation of its contract with him. Its contracts rest upon the same rules as those between individuals. Fletcher v. Peck, 6 Cranch, 87; Wahash, etc., Co. v. Beers, 2 Black, 448; Hartman v. Greenhow, 102 U. S., 672.

Under the original act no limit of time was fixed within which the defendant should reimburse Eeid, in case the conditions should -exist entitling him to reimbursement.

But the amendment fixed a limit of six years from the sale; this limit had been reached before the amendment was passed. If the amendment operated Upon past sales and contracts, then the obligation of the contract to reimburse Eeid was thereby instantly destroyed. See cases cited in McGahey v. Virginia, 135 U. S., at page 693. The amendment cannot, therefore, be given a retrospective effect; its language does not necessarily require that such effect be given it, and it can be satisfied by applying the amendment to such sales only as are made after its passage. It must, therefore, be so applied. Dash v. Van Kleeck, 7 Johns., 477; Fitzpatrick v. Boylan, 57 N. Y., 437; Matter of Miller, 110 N. Y., 216; 18 N. Y. State Rep., 226.

The learned counsel for the defendant insists that the statute of 1850 creates the liability, and therefore the right of the plaintiff depends upon the statute as it exists when the action is brought. But the statute did not create the liability. It authorized its creation. The liability exists by virtue of the contract. The contract exists because the statute • authorized it. The authority to incur the liability must not be confounded with the liability itself.

The amendment cannot be upheld as a statute of limitation upon the remedy. It -purports to be a limit beyond which the-duty of reimbursement shall cease, and therefore an alteration of the contract under which Reid made payment. If it should be regarded as a limitation upon the right of action it could not be upheld, because it leaves no day of grace whatever. A new statute of limitation, operating upon an existing cause of action, is-unconstitutional if it does not give a reasonable time for the commencement of the action before the bar takes effect. Terry v. Anderson, 95 U. S., 628; Sohn v. Waterson, 17 Wall, 596; McGahey v. Virginia, supra, at page 704; Wheeler v. Jackson, 137 U. S., 245.

Where a new statute of limitations is adopted the time which had run before the passage of the act is no part of the new limitation unless so expressed. Sohn v. Waterson, supra; Bailey v. Kincaid, 57 Hun, 516; 33 N. Y. State Rep., 110.

It is urged that the right of action is barred by § 382, Code Civil Procedure, which fixes a limit of six years after the cause-of action has accrued in which to commence an action to recover upon a liability created by statute, except a penalty or forfeiture; also upon a contract obligation or liability, express or implied, except a judgment or sealed instrument.

The cause of action by the terms of § 52 of the act of 1850 accrued upon the happening of both of the conditions specified therein.

1. “ Whenever any purchaser under such sale shall be unable-to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment, the board, of supervisors of said county shall reimburse the purchase money so paid, with interest; ” and, 2, “upon their refusal or neglect to do so the same may be recovered by an action against them.” Thus inability to recover possession gives the right to reimbursement, and then a demand and refusal give the right of action. Section 410, Code Civil Procedure, provides: “ Section 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must, be computed from the time when the right to make the demand is complete.”

It is not clear that this section applies, since § 52 of the act of 1860 fixes no limitation to the time for making the demand. Fisher v. Mayor, 67 N. Y., 73. But assuming it does apply, when was the right to make the demand complete ? The trial judge-found that by reason of errors and irregularities in the proceedings prior to the sales, Reid was unable to recover possession of the parcels sold at the time of such sales and immediately thereafter. He refused to find that Reid was therefore immediately upon or after such sales entitled to demand reimbursement. He did find that as the result of a decision of the court of appeals in a similar case, Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202, the said tax sales were declared irregular and void on or about June 7, 1887.

We understand from these findings, and from tne uncontroverted allegation of the complaint (recited above in the statement of facts), that the invalidating errors and irregularities existed at the date of the sales, and that they were always sufficient if interposed in due form to render the purchaser unable to recover possession, but this fact was not known until June, 1887. Prior to June, 1887, it might well be that, though the illegality of the proceedings existed, he could obtain possession because in the un- ■ known condition of the law his efforts to do so would not be resisted. Unquestionably some decisive, or at least satisfactory test of such inability was contemplated by the statute. “ Whenever any purchaser shall be unable to recover possession ” evidently contemplates time subsequent to the sale, when a determination of the .fact will be reached, and therefore the right to make the demand would not be complete until such time should arrive. The always present legal inability to obtain possession awaited some decisive test of its existence before it could start the time in which •a demand was due. Why was a demand made necessary except to advise the defendant that the contingency contemplated as possible actually existed ? It clearly was not contemplated that ■a demand should be contemporaneous with the sale, or be made until the occasion for it should be ascertained. Demand therefore was not due until June, 1887, and the statute did not begin to run until that date.

Section 52 provides that the purchaser shall be reimbursed with interest The right to interest is not dependent upon demand, but upon the statute, and was properly allowed.

Judgment affirmed, with costs.

Mayham, J., concurs.

Learned, P. J. (dissenting.)

I am unable to that a tax ■sale made under chapter 86, Laws of 1850, constituted a contract between the state and the purchaser. Previous to the sale the state tax had been paid by the county, § 42 of the act; and the purchase money on the sale was paid to the county treasurer. •§ 48. The state had no interest whatever in the matter, and the complaint alleges that the money was paid to the county.

If there were no such statutory provision as that contained in § 52, and if there were no special agreement on the part of the county to refund the purchase money, in case the title should be defective, then it seems to be settled that the purchaser could not recover such purchase money, but that his purchase would be at his own risk. Brevoort v. Brooklyn, 89 N.Y., 128 at 135 ; Coffin v. Brooklyn, 116 id., 159, at 166 ; 26 N. Y. State Rep., 421. There--i fore the right to-recover this money back is not a common law right. Ho special agreement to refund is alleged in the complaint. And the only right to recover must be that which is given in the statute. Of course, in a certain general sense, the existing law may be said to enter into every contract But in this case the ■contract was executed, viz.: a contract' of purchase and sale of property, and the price was paid. The liability to refund was not ■created by the agreement of the parties or by common law, but ■simply by the statute. The board of supervisors made no agreement to repay the money. Indeed they were not parties to the contract of sale. The county treasurer sold the property; and the statute declared that in a certain contingency the county should refund to the purchaser the price paid. The alleged liability therefore was created by statute. In the case of Brevoort v. Brooklyn, ut supra, it was alleged in the complaint and admitted by the demurrer that the defendant had expressly agreed that the purchase money should be refunded in a certain contingency. No such fact exists here. And therefore, there is no contract by this defendant to refund the money. The liability is simply imposed by the statute.

Thus it was said in Chase v. Lord, 16 Hun, 369, that the liability of a stockholder in certain cases for debts of the corporation-was a liability created by statute, within the meaning of Code of Procedure, § 91, subd. 2; Code of Civil Procedure, § 382, subd. 2. That case was reversed in 77 N. Y., 1, but not on this point. The statute of limitations then barred this action after six years after the cause of action accrued.

The plaintiff had not made any attempt to recover possession of the lands. Therefore there was no proof of inability by showing unsuccessful actions. The plaintiff relies therefore on showing that as a matter of law, she, or the purchaser, could not have recovered possession if actions of ejectment or other proceedings had been taken. To establish this question of law she cites the case of Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202, decided about June 7, 1887. And the trial court holds, as a fact, that as the result of that decision these tax sales were then declared void.

But admitting that by force of that decision it is the law that these tax sales are void; still it must be true that they were void from the beginning. And the learned justice so holds. Such a decision of the court does not make that void which had previously been valid. It only-declares the invalidity which has always existed. Therefore, it is true, assuming that the case above cited applies, that, from the beginning, the plaintiff,-or purchaser, has by reason of errors or irregularities in the assessment, etc., been unable to recover possession of the land, as was found by the learned justice.

Now it does not change the plaintiff’s rights to say that before Che decision above cited perhaps the plaintiff might have obtained possession of the land because, perhaps, the occupant would not have resisted an action of ejectment or similar proceeding. We do not know that the occupant of the land would now resist an action if brought by the plaintiff. All .we know is that such occupant could successfully resist. And that was true from the very first If the plaintiff, or purchaser, had brought ejectment or similar proceeding as soon as the certificates of sale were issued, the occupant, if he had chosen, might have defeated the action or proceeding. Whether he would have chosen to do so, we do not know. If he had not chosen to defend, the plaintiff, or the purchaser, would have recovered possession and then could not have maintained this action.

The plaintiff now rests this action solely.on the legal inability to recover in case the occupant should defend. Such inability has existed since the certificates were issued, and therefore the right of action in this case has existed for the same time.

In Parsons v. Rochester, 43 Hun, 258 ; 5 N. Y. State Rep., 467, an action was brought to recover back money paid on an illegal assessment It was held that the plaintiff had originally had a right of recovery, but that such right was barred after six years from the time of payment The plaintiff urged that he had not such right of action until the decision in another case, Hassan v. Rochester, 67 N. Y., 528, had established the invalidity of the assessment That is substantially the plaintiff’s view in this case. But the court said that that position was utterly fallacious ; that the Hassan decision did not create the right of action.

The same is decided in Van Nest v. Mayor, 24 W. Dig., 50, where it was held that an action to recover back money paid on a void assessment must be commenced in six years from the payment. And the court further said that the fact that the demand for the return of the money was not made until shortly before the action was commenced did not extend the time; that where the right to maintain an action depends on the making of a demand, the demand must be made and the action commenced within the time limited. Code of Civil Procedure, § 410; Dickinson v. Mayor, 92 N. Y., 584.

The case of White v. Brooklyn, 122 N. Y., 53; 33 N. Y. State Rep., 307, does not apply. The certificate in that case entitled the purchaser to a lease “ unless * * * any irregularity shall be discovered in the proceedings * * * in which case said purchase and all sums paid * * '* shall be repaid * * * provided this certificate shall be surrendered.” The plaintiffs demanded leases in May, 1882, which were not given. They discovered the irregularity in December, 1882. They demanded repayment and tendered the certificate in February, 1883, and commenced the action in that month. The right of action therefore by the terms of the certificate arose upon discovery and was conditioned on the return of the certificate, instead of the accepting a lease.

But the court in the opinion remarked: “If the right of the plaintiff was dependent solely upon the fact that such irregularity existed, it is clear that the statute commenced running on the expiration of the time for redemption” (that is the time within which the owner could redeem) “ and operated as a bar at the end of six years thereafter, although the plaintiffs were ignorant of the existence of the fact which entitled them to remedy.” Such is the present case. And see Allen v. Mille, 17 Wend., 202. The right of the owners to redeem in the present case expired in two years, but notwithstanding such right the purchaser was at once entitled to possession under his certificate, even before the conveyance. Sections 48, 49, 50 of the act.

It then became the duty of the defendants to repay the money whenever the purchaser was unable to obtain possession. And it is found by the court that such inability existed at once. They neglected to do so and thereupon the right of action arose. If it be claimed that a demand was necessary in order to show neglect, still the Code, § 410, provides that the time under the statute of limitations must be computed from the time when the right to make the demand is complete, except in certain cases not including this controversy. And this is a most reasonable provision. If a person has a right requiring a demand in order to enable him to maintain an action, it would be unjust that by neglecting or intentionally postponing the making of the demand he should enlarge the time within which he could bring the action to any extent he might choose. The contrary rule would allow this plaintiff to wait for fifty years and then make a demand on the defendants, and, therefore, bring an action within six years thereafter.

I think the judgment should be reversed.

Judgment affirmed, with costs.


author: Learned, P. J. Mayham, J. (dissenting.)

text:
    Sylvester B. Miller, Adm’r, App’lt, v. Harriet E. Davis et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1892.)

    Evidence—Code Civ. Peo., § 829.
    An administrator, the son, and also sole creditor of an intestate, brought an action, under chapter 314, Laws of 1858, to set aside a deed made by the intestate to certain of his children, upon the ground that it was without consideration and fraudulent as to creditors. Upon the trial one of the grantees testified in her own behalf as to the transaction with the intestate and his physical condition at the time. Held, that the testimony, although contrary to the letter of § 829, Code Civil Procedure, was within its spirit admissible. That the action, although by an administrator, was in fact for the benefit of creditors and brought to attack the intestate’s acts and the evidence in question supported those acts and hence the witness could not be said to have testified “ gainst ” the interest of the intestate’s estate, but did testify against a creditor who derived no title or interest through or under the intestate.
    (Mayham, J., dissents.)
    Appeal from a judgment in favor of the defendant entered upon the report of a referee.

      H. S. Johnson (J. F. Conway, of counsel), for app’lt; G. H. Beckwith, for resp’ts; H. F. Dobie, for administrator.
   Learned, P. J.

This is an action brought by the administrator of Thomas Miller, deceased, to set aside a deed made by plaintiff’s intestate to Harriet Davis and others as fraudulent as against creditors of the deceased. The action is brought under the well known statute, chap. 314, Laws of 1858. That statute authorizes an administrator to take a position of hostility to the estate of the deceased, and to act in behalf of creditors of the deceased and thus to maintain an action which could not have been maintained by the deceased himself. It is a familiar doctrine that if a man makes a conveyance which is fraudulent as to creditors he caimot maintain an action to set it aside. Having been a party to the fraud he cannot recover back what he ’ has fraudulently parted with. Nor probably could the administrator have done this prior to the statute. A creditor might, and may still. And the statute has not taken away his right. But it has allowed the administrator to act for the creditor and thus to assume a position hostile to the rights of the deceased, whom he was appointed to represent.

One of the defendants and grantees in the deed from the deceased was called in behalf of herself and of her co-defendants and testified to a conversation had by her with the grantor, plaintiff’s intestate. Her testimony among other things related to the physical .condition of the grantor and to statements made by him relative to the transaction.

This was duly objected to under § 829 and an exception to its admission was duly taken.

Under the literal language of the section the witness was not competent to testify to these matters. But the spirit of this section is that a party shall not testify to a personal transaction with a deceased person against the interest of such deceased person's estate represented by the administrator. And the reason is that the deceased person cannot, in answer to the witness, give his own version of the transaction. It would therefore be unjust to permit the surviving party to the transaction to testify to his side of the case when death had closed the mouth of his opponent But in this action it is the administrator who is acting for a creditor, and for such creditor the administrator is attacking the act of the deceased. On the contrary, the witness is testifying in support of such act and is therefore defending the deceased and supporting his act.

If the creditor of the deceased had brought this action it is plain that the witness would have been competent to testify to the matters in question. The administrator is only the instrument of the creditor, while nominally representing the deceased. The real contest is between the creditor and the defendants. And as between them the witness should be competent To exclude the testimony is to give effect to the letter of the section without considering its spirit and intent.

Let us suppose that the grantee had paid the deceased $5,000 as consideration for the deed. If a creditor of the deceased had sought to set aside the deed as fraudulent, the grantee could have testified to his payment But the creditor instead of bringing the action, induces the administrator to be the plaintiff. Still the creditor is the real party in interest But if the letter of the section is to be followed, the grantee is shut off from a defense to which probably no one else could testify.

The prayer of the complaint is that the land be sold for the satisfaction of plaintiff’s debt For the plaintiff is himself the creditor, although in his complaint he complains in behalf of himself, and “ any other creditors there may be. But he alleges that he has advertised for claims and none have been presented, and he believes there are none but himself. This, then, is really an action of his own as creditor. If he should as creditor request himself as administrator to sue, and if as administrator he should refuse, then he could sue as creditor; as settled in Harvey v. McDonnell, 113 N. Y., 526; 23 N. Y. State Rep., 501. And as the result of the action, if successful, would be only to pay the plaintiff as creditor, evidently the administrator has no real interest That he is the nominal party should not deprive the defendants of their testimony.

It has already been found necessary to limit the letter of similar sections by consideration of the spirit and of the evil they were intended to prevent.

We think that this case presents another instance not foreseen by the legislature, in which the section would be perverted to injustice if the letter were to prevail, instead of the spirit. When we ask “ against ” whom, in the word of the section, did the witness testify, we must answer against a creditor who derived no title or interest from, through or under the deceased.

Judgment affirmed, with costs.

Laptdopt, J., concurs.

Mayham, J. (dissenting.)

The plaintiff prosecuted this action under the provisions of chapter 314 of the Laws of 1858, which authorizes an administrator of the estate of an insolvent to treat as void, and resist all acts done, transfers and agreements made in brand of any creditor, including themselves and others interested in any estate held by or of right belonging to the estate represented by him as such administrator.

The estate of the intestate in this case is wholly insufficient to pay his debts, unless the premises covered by the deed sought to be set aside can be reached, if we assume that the bond held by the plaintiff is a valid claim against the estate of the deceased.

The bond antedates the deed; the plaintiff attacks the deed as fraudulent as to it upon the ground that it is a voluntary conveyance wholly without consideration.

The evidence tended to prove that prior to the 8th day of January, 1868, Thomas Miller, plaintiff’s intestate, was the owner of about 350 acres of land in the town of Plattsburgh, which on that day he conveyed by warrantee deed to this plaintiff, taking back a mortgage from the plaintiff for $5,000, conditioned for the support and maintenance of Thomas Miller and his four sisters, three of whom, with the administrator of the fourth, are the defendants in this action.

On the 1st day of August, 1876, the plaintiff and wife re-conveyed to Thomas Miller the fifty-nine acres of land covered by the conveyance sought to be set aside in this action, and at the same time Thomas Miller, the intestate, by an instrument in writing and under seal released the $5,000 mortgage and the bond given by plaintiff to him and his daughters, and at the same time, and as part of the same transaction, executed and delivered to this plaintiff the $2,000 bond which he now claims to hold any claim against the estate of his intestate. It was admitted on the trial that the plaintiff furnished no support under the $5,000 bond to his father or sisters after the first of January, 1877.

On the 30th of October, 1876, intestate executed and delivered to his daughters the deed in question, which, as we have seen, is attacked in this action as fraudulent, voluntary, and without consideration.

On the trial the defendants sought to sustain the deed by establishing that plaintiff’s intestate gave the deed to his daughters to compensate them for their interest in the $5,000 bond and mortgage which he had cancelled when plaintiff re-conveyed to him the fifty-nine acres.

"Upon that subject Susan L. Miller, one of the defendants and grantees in the deed in dispute, was called by the defendants and permitted to testify in her own behalf and that of her co-defendants to a conversation had with her grantor, plaintiff’s intestate, under plaintiff’s objection and exception.

We think that this evidence was improper, and that the objection to the same and the exception to the ruling of the referee admitting it were well taken, and that the evidence was upon a material issue, and that its erroneous reception cannot be disregarded.

On the direct examination the witness was asked: “ Q. During the fall of 1876, October, and some time prior thereto, what appeared to be your father’s condition, physically and mentally?”

Objected to by the plaintiff as immaterial and incompetent, and as calling for a personal transaction and dealings between the witness and her father, and not admissible under § 829 of the Code, and that the witness is not competent and it is not in issue. Objections overruled and plaintiff excepts.

A. “ Physically, very infirm, not able to take care of himself, and had not been for some years. Mentally, his mind was good and clear, unless excited or stood in fear of some one.”

While this evidence did not, perhaps, bear directly upon any issue properly to be tried in this case under the pleadings, and might properly have been excluded under th'e objection as immaterial, yet as it was received, we cannot on this appeal say that it was not treated by the referee as some evidence of consideration" for this deed, especially as the intestate lived with and was cared for in his alleged helpless condition by the grantees in this deed. And it is only when the court can see that the result could not have been affected by the illegal evidence that it is at liberty to disregard it on appeal. Milliner v. Lucas, 3 Hun, 496; Baird v. Gillet, 47 N. Y., 186.

If, therefore, the evidence was incompetent and inadmissible as ' a personal transaction with the deceased grantor, we cannot say it was absolutely harmless.

In Holcomb v. Holcomb, 95 N. Y., 316, where a person interested in an assignment was permitted to swear to the mental condition of the assignor, it was held to be such a personal transaction with the assignor as to come within the prohibition of § 829 of the Code.

But the testimony quoted is not the most objectionable feature of the evidence of this witness; on her redirect examination she was interrogated by the defendant’s counsel in this form:

Q. " State what was said when your father informed you he had satisfied the $5,000 mortgage? ”

Objected to as immaterial, incompetent and calling for personal communications and transactions with the deceased. Objection overruled and plaintiff excepts.

A. “ My reply was that it looked as if he had turned himself and daughters into the street. That as to his state of health and mine we were unable to do anything for our support. His reply was, ‘ I told Sylvester that I should give you girls the fifty-nine acres of land in return for the mortgage which I gave up, which rightfully belonged to you, and I will do it right away, either by deed or will.’

“ I proposed that he do if by deed, to save expense of settling the estate. His objection was, lest we take it and walk off with it as the rest of the property had gone.

“ I then proposed that he give us the deed and for us not to take possession until his death. He said he would do so.”

This evidence was clearly improper under § 829 of the Code of Civil Procedure.

It was a personal communication between the defendant and her deceased grantor, against an administrator, and in direct violation of both the letter and spirit of that section.

It was upon a material issue, and it cannot be said that the court can see that it did not affect the result. White v. White, 62 N. Y., 80; Foote v. Beecher, 78 id., 35; Clark v. Vorce, 19 Wend., 233.

As the admission of this evidence must reverse this judgment it is unnecessary for us to discuss the other questions raised on this appeal.

Judgment reversed, referee discharged and a new trial ordered, costs to abide the event

Judgment affirmed, with costs.


author: Landon, J.

text:
    Thomas Armstrong, App’lt, v. Peter Phillips, as Com’r, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Pleading—Scandalous matteb mat be stbicken out on motion, although IT IS ALSO DEMUBBABLE.
    The defendant served an answer in an action, the second defense in which contained scandalous and irrelevant matter, and the whole of this defense was demurrable. The plaintiff made a motion to strike it out as scandalous and irrelevant. A short time before the motion came on, the defendant served an amended answer omitting the matter objected to. This was returned as not served in time. Sdd, that the motion should have been granted. That it was error for the court to deny the motion upon the ground that demurrer was the proper remedy, and also that the matter complained of had been omitted in the amended answer. That as to the matter confessedly scandalous, the plaintiff, in such a situation, is not to he compelled to admit its truth, as he must do when he demurs.
    Appeal from an order denying a motion made by the plaintiff to strike out the “ second or further answer ” of the defendant upon the ground that specified parts thereof are scandalous and other parts are irrelevant and redundant
    The answer was served by mail August 9th, 1890. Rotice of this motion was served August 30th, 1890, to be heard September 9th, 1890. September 5th, 1890, the defendant served an amended answer by mail in which no portion of this matter sought to be stricken out was inserted. This answer was seasonably returned to defendant’s attorneys'with this endorsement: “Returned for the reason that defendant’s time to answer has expired, and that a motion is pending,” signed by the plaintiff’s attorney.

      T. Armstrong, for app’lt; Palmer, Weed & Kellogg, for resp’t.
   Landon, J.

Part of the “second” answer was scandalous, another part of it irrelevant, and the whole of it demurrable. Plaintiff’s motion strike it out, in whole or in part, was denied because, first, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served but within due time, and having omitted therefrom the whole objectionable count, the subject matter of the motion was no longer before the court and the motion was supesodsd

Goodman v. Robb, 41 Hun, 605; 5 N. Y. State Rep., 242, is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith to protect the party’s supposed rights. The scandalous matter here was obviously inserted not to protect the defendant, but to insult the plaintiff, and if thé plaintiff had no remedy against it, except by demurring and thereby confessing the truth of the insulting matter, tne defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. See Carpenter v. West, 5 How. Pr., 53; McVey v. Cantrell, 8 Hun, 522.

The defendant had but twenty days in which to serve his amended answer as of course. Section 542. He could not by serving his original answer by mail give himself double time in which to amend it. It was the adverse party and not himself who acquired double time. § 798, and Throop’s note.

It follows that the amended answer was properly returned and the motion was not superseded and ought to have been granted.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.

Learned, P. J., and Mayham, J., concur.


text:
    Michael Larow, App’lt, v. Nicholas J. Clute, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Negligence—Acts oe independent contractors causing an accident.
    The defendant was the owner of three adjoining houses. Water appeared in the cellar of one house. The defendant’s agent ordered a firm of plumbers to make an examination and remedy the difficulty. After some digging they found that the sewer was defective and was stopped up and proposed a nexv sewer. The firm bailed or pumped the water out of the cellar, and the defendant consented that one of his tenants should assist; but he was paid by the firm. The water thus pumped out leaked upon the sidewalk and formed ice, upon which plaintiff slipped and was injured. The new sewer was by defendant’s order temporarily abandoned. The firm rendered defendant a bill, which he paid. Held, that the negligent act of allowing ice to form upon the sidewalk was the act of inde-" pendent contractors and that defendant was not liable.
    Appeal from a judgment of nonsuit directed by the court upon the close of plaintiff’s testimony at the Albany circuit upon the trial before a jury.
    The action was to recover damages sustained and expenses incurred by the plaintiff in consequence of injuries alleged to have been received by his wife from a fall upon an icy sidewalk on the south side of Factory street in the city of Cohoes, in March, 1885, opposite the premises of the defendant, the plaintiff alleging that a dangerous accumulation of ice was formed upon the sidewalk in consequence of the negligence of the defendant.
    The evidence on the part of the plaintiff tended to show that the plaintiff’s wife did, March 12, 1885, slip and fall upon a ridge of ice upon the sidewalk in question and received serious injuries, and that the plaintiff incurred expenses and sustained the loss of her services in consequence. It further appeared that the ridge of ice was formed from the freezing of water which was spilled by workmen employed in pumping water from the cellar of one of defendant’s houses.
    The trial court directed the nonsuit, holding that the negligence in spilling the water was not the negligence of. the defendant, but of the independent contractor whom he had employed to remedy the difficulty which caused the water to come into the cellar. The evidence upon this branch of the case was to the effect that the defendant was the owner of three adjoining buildings fronting upon the south side of Factory street and occupied by his tenants. That his son James S. Clute was his agent with respect to the rental, repair and care of the buildings. Three days before the plaintiff’s wife was injured water was found in the basement of one of these houses, and James S. Clute, as the agent of the defendant, requested the firm of McGuire & Cady, who were plumbers, to remedy the difficulty. Cady, one of the firm, went and madé an examination and reported to Clute in the evening that they could do nothing that night except to get a man to bail the water out and keep it down, and Clute told him to get a man and do it, and Cady said he could get Crandall, one of defendant’s tenants, and Clute replied, all right. Cady saw Crandall and told him to go to work at bailing out the water. The next morning Cady went to the basement and ascertained the location of the sewer and found that it was stopped up, and he had his own workman dig a hole in the cellar of the next house down to the sewer, tapped the sewer and found that the stoppage was further along. The water flowed into the cellar from the opening made by Cady. He decided that it was necessary to pump the water out in order to locate the place of the stoppage. Cady then got a pump from his own shop, and his workmen placed the pump through the cellar window, which opened on Factory street, attached a conductor to the spout of the pump and led the conductor across the sidewalk, so that the water pumped from the cellar would be discharged into the street gutter, and then had his workmen pump ■out the water, working the pump from the street In pumping the water some of it leaked or dripped from the point.of connection between the spout of the pump and the conductor leading across the sidewalk, and this dripping water froze and formed the ice upon which the plaintiff’s wife fell. After working two days and digging down to the sewer on the back side of the house, Clute came where the work was going on, and Cady told him that the sewer leading from the street to the house was partly a box sewer and partly stone pipe, and that in order to make a good job ■of it he would have to dig it all up from the alley. Clute replied, 41 You had better let it alone then, now, until the weather is better, and I will have a new sewer put in, as it will be too hard to dig now.” Thereupon Cady stopped work, and afterwards rendered Clute his bill for the entire service of himself and workmen, ■charging by the day, which Clute paid.

      Matthew Hale, for app’lt; C. F. Doyle, for resp’t.
   Landon, J.

We think that within the rule as established in this state the nonsuit was properly directed. Hexamer v. Webb, 101 N. Y., 377; 1 N. Y. State Rep., 46; Blake v. Ferris, 5 N. Y., 48; Pack v. Mayor, 8 id., 222; Kelly v. Mayor, 11 id., 432. The defendant directed McGuire and Cady to accomplish in their own way, with their own tools and workmen, a certain result While engaged in trying to accomplish this result McGuire and Cady pursued such methods as they thought proper, and in pursuing •them the negligence occurred of which the plaintiff complains. McGuire and Cady were independent contractors, familiar with this kind of work and supposed to be able by their own resources and skill to use the proper methods of accomplishing it. The workmen who spilled the water were their servants, and it was their duty as their masters to see to it that in obeying their ■orders these servants did not by their negligence injure third persons.

The learned counsel for the plaintiff, while assenting to the rules laid down in the cases cited, contends that they do not exempt this defendant, for the reason that although he did not give any directions as to the details of the work, and only desired that the existing difficulty should be remedied, yet it was under the circumstances a question for the jury whether he did not reserve to himself such a control over McGuire and Cady as entitled him to give them particular directions as to the details if he saw fit to do so, and if so then McGuire and Cady and their workmen were the servants of the defendant, and thus their negligence was his negligence. If the defendant did reserve the right to interfere with and control the work, then he is liable, for in such case obedience in details as well as in the general plan would be due as the defendant might command. But there is no evidence that any such right was reserved. It was said in Hexamer v. Webb, supra, that the fact that no price was fixed and no specifications made did not make the contract one of mere hire and service, or create the relation of master and servant; also, that the work was charged' for by the day made no difference.

In this respect the authorities are not quite in harmony with those in some of the other states. Tiffin v. McCormack, 34 Ohio St., 638; Brackett v. Lubke, 4 Allen, 138. Clute’s consent to the employment of Crandall to bail out the water before the contractors, could begin their work upon the job did not make Crandall his servant. The contractors employed and paid him; besides, his work in no way contributed to the injury. The contractors were employed to find out the cause of the difficulty and remedy it. They ascertained that the sewer pipe leading from under the houses to the street sewer was stopped somewhere. They worked until they ascertained that part of the sewer leading from the houses was a wooden box sewer and part made of pipes. They then concluded that instead of trying to remedy the old sewer it would make a better job to dig it all up and lay a new one; that is, to abandon the job they had undertaken and enter upon a new one. This they proposed to Clute and he then told them to stop present work, and when the digging should become easier he would lay the new sewer. Thus by mutual consent the old! job was stopped and the new one postponed. Everything which the contractors did for the defendant they did, to use the language of Hexamer v. Webb, “ respresenting the will of their employer only as to the result of their work, and not as to the means by which it was to be accomplished.” So far as they did anything the work was under their independent, control.

It was the proposed new work which Clute reserved control of, and as to that no complaint is made.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    Charles Shaw et al., App’lts, v. Frank A. Roberts, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

      1. Justice’s court—Jurisdiction—Accounts exceeding $400.
    In an action where a question arose as to the jurisdiction of a justice, because, as alleged, the accounts of both parties exceeded $400, it appeared that defendant had been plaintiffs’ clerk and that upon monies advanced him by plaintiffs he had repaid part in cash and had charged other sums against himself in their books. Field, that it was a question of fact for the justice to find whether these sums were payments upon the defendant’s services; that if he so found and the accounts thus reduced were within the statutory limit, the justice had jurisdiction.
    2. Same—Affirmative defence must be proved by the defendant.
    The defendant alleged in his answer that he was to have a share in the profits of the business. He gave no evidence to show profits. The plaintiffs gave evidence that there were no profits. This evidence was objected to as incompetent. Field, that it was for the defendant to show that there were profits and having failed to do so he was not injured, although the plaintiffs’ evidence was improper.

      Appeal from a judgment of the Warren county court, reversing a judgment of $194.53 and costs in favor of the plaintiffs.

      Adam Armstrong, for app’lts; H. A. Howard, for resp’t.
   Landon, J.

The question is whether “ the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.” Code Civ. Pro., § 2863. The defendant had been in the service of the plaintiffs, and his services were proved to amount.to $561. Apparently the amount of the accounts of the plaintiffs was $1,005.53 after deducting an error of $15.35 in what was termed the Braley and Noxon item. The apparent amount of the defendant’s accounts was $811, after deducting the same $15.35 charged therein to counterbalance the error in the plaintiffs’ account. Of the plaintiffs’ account more than $729.26 were cash items received by the defendant from them. The defendant testified and was not contradicted that he had returned to the plaintiffs $250 upon the amount received from them, and had charged himself in their books with $479.26. It was for the justice to find as a fact whether the $250 returned to plaintiffs was as a payment upon their advances, and whether the $479.26 which defendant charged to himself in their books was a payment to himself upon his services. The justice manifestly so found, and as it was a fair inference of fact from the testimony we must accept his finding. These payments extinguished pro tanto the sum total of the accounts. The defendant’s account therefore was for his services $561, less $479.26 paid thereon leaving it $81.74. The plaintiffs’ account of $1,005.-53 was reduced by the $250 repayment and the $479.26 applied in payment of defendant’s services, leaving it $276.27, making the sum total of both accounts $358.01, and thus within the jurisdiction of the justice, and making the difference $194.53, for which he rendered judgment against the defendant..

The complaint was to recover $200, for money, services and merchandise, for which the defendant, who “ has been in the employ of the plaintiffs,” was indebted to them “ in excess of the ■amount of the services.”

The answer contained a general denial, claimed $600 for services, alleged a contract by which, in addition to $1,200 per year, the defendant, was to receive two and one half per centum of the profits, and claimed $1,300 damages because of his premature and unjust discharge from service.

Error is alleged with respect to testimony given by one of the plaintiffs tending to show that there were no profits. . No testimony was given by the defendant tending to show that there were .any profits.

Grant that plaintiffs’ testimony was. incompetent and should have been excluded, its exclusion would not help the defendant. The case would then be barren of all evidence upon this point, and without evidence the defendant’s claim would have to be rejected. If there was anything of it, it was an affirmative claim for the defendant to plead and prove. The defendant did set it forth in his answer. The form of the complaint cast no burden on the plaintiffs to disprove it; for if it can be said that the complaint implied that some amount was due the defendant for his services, in the absence of all proof, a nominal sum, not exceeding six cents, would fully satisfy the legal implication.

The defendant complains of some rulings upon the admission and exclusion of evidence. We do not think the defendant was prejudiced by any of them. The defendant did not dispute in his-testimony any of the items the plaintiffs adduced, and clearly he must have had full knowledge respecting their validity.

Judgment of the county court reversed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Peckham, J.

text:
    The Bank of British North America, Resp’t, v. Richard Delafield, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Partnership—Loan to partner—Assignment of claim for.
    An ordinary, simple loan by a firm to a partner implies a promise to pay at the time stated, or upon demand, without going into an accounting, and an assignee of such claim can recover upon the indebtedness-arising from the loan, after proof of the state of the partnership accounts- and that such partner was indebted to it in a greater sum than the amount assigned.
    2. Same—Evidence.
    Defendant in Chicago wired his firm at San Francisco that he desired to draw $25,000 to use for his own interest, and the firm replied that they would not allow him to draw anything above living expenses, but would loan it. Without replying he drew a check upon the firm for the amount named. On the trial of an action upon a draft drawn upon him by the firm for the amount, and assigned to plaintiffs, defendant swore that it was not a loan to him, but drawn by him as'a matter of right, whereupon plaintiffs were allowed to introduce a letter from the firm to defendant rehearsing the circumstances and the refusal of the firm to permit the draft except as a loan. Held, error; that the letter was a mere declaration of the writer characterizing the nature of a past transaction, and did not demand an answer, and was not admissible in evidence.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff recovered on trial before the court.

      E. Countryman, for app’lt; Hugh L. Cole, for resp’t.

       Reversing 35 N. Y. State Rep., 655.

   Peckham, J.

Upon the question whether 'the money which the plaintiff seeks to recover was a loan to the defendant from the firm of which he was a member or was money drawn by him under a claim of right from the firm treasury in New York, we think there was evidence to warrant a finding that it was a loan, and was so received by the defendant.

The learned trial judge found that it was a loan. No time was. specified for its repayment and it became due upon demand. The-defendant claims that no action at law by a portion of a firm can be maintained in case of a breach of contract and of a wrongful act by another member and against such other member, unless-upon an express promise to pay and after a final accounting and a balance struck. This may be true. But the case is one where-the member sued has been guilty of a wrongful act and a breach of his duty, and has for instance converted funds to his personal use, by payment of his debts, which belonged to the firm. These are the general characteristics of the cases cited by defendant’s counsel. Here is a case, however, where a loan of money belonging to the firm has been made to one member of it, and the law upon an ordinary, simple loan even to a partner implies a promise to pay it at the time stated or upon demand without going into an accounting. The cases where an express promise to pay have been required were those where from the facts no implied promise to repay would be raised excepting upon an accounting and a balance struck. Thus Judge Allen in Crater v. Bininger, 45 N. Y., 545, at 548, says that an action will not lie by one member of a partnership against another upon an implied promise, and if the plaintiff had paid the demands against the firm.he could not have maintained an action against his associates upon the implied promise to repay him.

In such case the promise implied is to repay the amount that may be found due after an accounting. But one partner can maintain an action against his copartner upon an express promise although connected with partnership business. He refers to the case of Gridley v. Dole, 4 N. Y., 486, which was one where one of two partners after a dissolution advanced money to the other upon his promissory note, to pay partnership debts, the assets of the late firm being in the hands of the member receiving the money. It was held he could recover upon this express obligation to repay, but if no such obligation had been taken, it would have been the case of one partner advancing money to pay, or paying demands against the firm, and in such case he could not recover back the whole or any part of the money in an action against his copartners, because the action would be upon an implied promise, and that implied promise was only that the other partners would pay what was due him after an accounting had been taken to ascertain the state of the partnership matters and the balance if any that might be due him. Where, however, the facts proved raise an implied promise to repay upon demand the very sum which has been loaned, I think an action can be maintained thereon just as well as upon an express promise to do the very thing which the law implies without such express promise. But be that as it may, we have here the further facts that the indebtedness from defendant to the firm was assigned by it to the plaintiff, and upon the trial an examination into the firm accounts was had so far as to show the defendant indebted to the firm in a sum largely in excess of the money sued for by the plaintiff. That an assignee could recover upon the indebtedness arising from the loan, after proof of the state of the partnership accounts and that defendant was indebted to it in a greater sum than the amount assigned, can admit of no doubt In our union of legal and equitable remedies in the same tribunal, and after what may be termed an examination in the nature of an accounting has been had, it is a matter of no importance that it was carried on in what would be termed an action at law. There is no claim now made that there has been but a partial accounting or that in consequence of such partial accounting the defendant has been found indebted to the firm in a greater sum than would have appeared if a full and complete accounting had been had, and greater than will appear when a full and complete accounting comes to be had between the members of the firm in an action wherein they are all parties and where the judgment will bind them all. "W e think the plaintiff showed enough to maintain its action in this respect.

These views would lead to an affirmance of the judgment were it not for the erroneous admission of one piece of evidence which we see no available answer to. There was no dispute that the defendant, on the 31st of December, 1887, drew $25,000 of firm moneys, and had it credited to him in his own private bank account. Up to that event he had drawn $800 monthly, which was all that by the partnership articles he was entitled to draw. A few days before he, living in New York, had telegraphed the other members of his firm in San Francisco asking if he might draw $25,000, and had been refused that privilege, but the firm, ■through its senior member, had offered to loan .defendant that amount, provided defendant could negotiate it. The defendant made no answer, but in a few days thereafter drew the money. From the partnership articles forbidding any such draft, and from the request of defendant asking if he might draw, and the refusal of the firm to permit it as a mere draft, but offering to loan him that amount, and the subsequent action of defendant in drawing the sum, and from all the circumstances of the case, the court was asked to draw the inference that defendant when he drew the money drew it pursuant to the consent of the firm as a loan, and not in opposition thereto as well as in violation, as claimed, of the partnership articles. The question was one of intent, a question of fact, to be decided after a consideration of all the evidence in the case. The defendant was a witness, and denied fully and unequivocally the drawing of the money as a loan, pursuant to the consent of the other members of the firm, and he swore that he drew it as matter of light upon the dissolution of the firm, which event occurred on that day, and he claimed that such drawing was not, under the circumstances of an immediate dissolution of the firm, in violation of the partnership articles limiting his drafts to $800 per month, which limit he had then already reached. Here was evidence from which different inferences might be drawn by the trial judge. Delafield being a party interested, the court was not bound to believe him when be swore to what was his own intent accompanying the act of drawing, and that act was not in and of itself of so unequivocal a nature as to be conclusive evidence of the defendant’s intent.

In this state of the case it is seen that any evidence erroneously admitted and which may have had an effect upon the mind of the learned trial judge, cannot be overlooked. The plaintiff under the objection and exception of the defendant specifically pointing out the proper grounds, was permitted to put in evidence a letter written by one of the members of the late firm in San Francisco, to defendant, under date of April 27, 1888, in which the writer assumes to rehearse the circumstances of the drawing of the check by defendant in the previous December, and the refusal of the firm to permit the draft, excepting as a loan in aid of defendant, and then the letter continues : “ You acceded to the terms of Mr. Coleman’s dispatch of December 12, and accepted this money as a loan. Now that we require the money and as you have had ample opportunity to turn yourself and realize upon your securities, we trust that you will appreciate thoroughly and understand our position in valuing upon you as per our cashier’s letter above-mentioned.”

It does not appear that the defendant ever answered the letter.. We can see no ground upon which the letter is admissible. It is. not in the nature of a declaration which the defendant admits by not answering, nor is it on the same plane as an oral declaration to the same effect, made in the presence of the party to be charged and who may be regarded as admitting its truth by failing to deny it. This letter is a mere declaration of the writer assuming in his own behalf to characterize and determine the nature of a past transaction, and it does not demand an answer and is not admissible in evidence against the defendant. Learned v. Tillotson, 97 N. Y., 1; Talcott v. Harris, 93 id., 567, 571.

The letter was not admissible for any purpose of proving the intention that the draft drawn on defendant in favor of plaintiff should operate as an assignment to plaintiff of the claim of the firm against the defendant. The letter will be read in vain for any such information. It was clearly not written for any such purpose.

The draft itself showed that it did so operate. It was an order upon a particular fund and for the whole of it.

The case is entirely different from that of Throop & Co. v. Smith, 110 N. Y., 83; 16 N. Y. State Rep., 831, where the draft was an ordinary one drawn on no particular fund, and the letters passing between the parties were put in evidence to show that, there had been an assignment of the debt to one of them and an acceptance thereof by him. They were parts of the res gestaet and were the very papers upon which a contract of assignment and an acceptance thereof were shown. Nor was this letter ad- ' missible for the purpose of proving notice of the assignment to the defendant. The answer admits notice thereof on or about May 4th. Notice probably would only be important for the purpose of guarding against any dealing by the defendant with the original owners after the assignment and in ignorance thereof. In this case it was not material, and if it were, an admission thereof stood upon the record. In addition the draft itself was presented for payment and payment refused. There was no question of notice in the case. The evidence of the taking of this money by defendant as a loan from the firm was somewhat slight. It was a question of fact to be decided upon evidence admitting different inferences therefrom, and the question is so close we cannot say the defendant suffered no harm from the erroneous admission of the letter.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur.