author: Coleman, S.

text:
    In the Matter of Proving the Will of Theodore L. Jackson, Deceased.

      (Surrogate’s Court, Orange County,

      Filed June 1, 1892.)

    1. Will—Cosditiokal legacy.
    A bequest to a person provided he will write his name in a certain manner is not void for uncertainty, but is valid and vested subject to be defeated by the breach of the condition.
    3. Same—Forfeiture of legacy.
    The will provided that if “ any person or society be dissatified with any gift herein made, then in that case said gift shall be wholly withheld.” One of the legatees filed objections to probate for insufficiency of execution and as to the validity of certain provisions. Held, that the language of the provision in question was so indefinite and uncertain and so broad and sweeping that it could not be enforced, and that such legatee did not forfeit his legacy.
    3. Same—Charitable bequests.
    The residue of the estate was given to the executors to be expended by them for benevolent and charitable purposes as they should deem wise and best for the promotion of Christianity and the welfare of mankind in the world. Held, void, there being no certain designated beneficiary, and that as to the residue testator died intestate.
    Probate of will.

      J. M. Wilkin, for executors; Greene & Bedell, for Theodore L. Boyd, next of kin and legatee; G. O. Hulse, special guardian of minors.
   Coleman, S.

—The contest in this matter has finally narrowed down to three questions:

First. The validity of the legacy of Thaddeus J. Boyd.

Second. Whether the opposition to the probate of the will, made by Theodore L. Boyd, invalidated the legacy given him by the will."

Third. As to the validity of the forty-ninth or residuary clause of the will.

With reference to the first of these questions the language of the will is: “I give and bequeath to Thaddeus J. Boyd the sum of one thousand dollars provided he will write his name in all future time T. Jackson Boyd, but if he refuses so to do, then I only give him five hundred dollars, and the balance, or §500, to revert back to my residuary estate.”

It is alleged that the gift is void for uncertainty ; that the condition imposed by the testator is dependent upon the whim or caprice of the beneficiary, and cannot, therefore, be ascertained or judicially determined.

It is my opinion, however, that the gift is valid, and is vested, subject to be defeated by a breach of the condition, which is a. condition subsequent, and one which may be fully complied with. There was some evidence upon the hearing that the legatee has, so far, complied with this condition. The executors should ascertain, however, before paying over the legacy, that the legatee has met the requirements imposed by the testator. Dustan v. Dustan, 1 Paige, 509. In the event of a subsequent breach, the parties next entitled have their action to recover. Davies v. Lowndes, 2 Scott, 71; Taylor v. Mason, 9 Wheaton, 325; Luscombe v. Yates, 5 Barn. & Ald., 544; Tilden v. Tilden, 13 Gray, 103.

And as to the second: The testator’s will contains the follow- . ing: “ Should any person or society be dissatisfied with any gift, herein made, then in that case said gift shall be wholly withheld.” Theodore L. Boyd, who is given a legacy of $200, has filed objections to the probate of the will as a whole, for insufficiency of execution, and also as to the validity of a number of its provisions, particularly of the residuary clause, and a contested probate-has been had by reason of such objections. The language of the will relating to this subject is so indefinite and uncertain that the testator’s intention cannot with any certainty be ascertained. Apparently any dissatisfaction as to any gift therein made is sufficient to debar a legatee from taking a legacy. A condition so-broad and sweeping, if intended, could not be enforced, for it could not be ascertained whether it has been violated. I am of the opinion that the contestant has not forfeited his legacy. Jackson v. Westerfield, 61 How. Pr., 399 (407), and cases cited.

Third. After making some forty odd items in his will the testator finally provides as follows:

“ All the rest, residue and remainder of my property and estate, of every name and nature whatsoever and wheresoever situate- and placed, I give to my executors to be expended by them for benevolent and charitable purposes, as they or the survivor of them shall, in their or his good judgment, deem wise and best for the promotion of Christianity and the welfare of mankind in the world.”'

This is clearly void, there being no certain designated beneficiary, and as to such residue the testator died intestate. Tilden v. Green, 40 St. Rep., 512.

Will admitted to probate, except the residuary clause.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Proving the Will of Henry Gagan, Deceased.

      (Surrogate's Court, Orange County,

      Filed June 8, 1892.)

    Will—Attorney who is subscribinq witness competent to prove.
    An attorney who was a subscribing witness to a will is a competent, witness to prove its preparation and execution. The testator by asking-his attorney to become a subscribing witness waives the pledge of secrecy imposed by the statute and dissolves the confidential relation existing between them.

      Proof of will.

      Howard Thornton, for ex’rs; E. A. Brewster, Jr., for Henry Gagan, Jr., contestant; J. L. Strahan, special guardian of minors contestants.
   Coleman, S.

—The objection to the testimony of the witness-Thornton is not well taken.

This testimony is objected to, first, because the witness is named in the will as an executor and, not having renounced such appointment, is an interested party within the meaning of § 829 of the Code. Loder v. Whelpley, 111 N. Y., 239; 19 St. Rep., 631, is cited as authority in support of this claim. That case only decides that an executor, who is also a legatee, may release his legacy and then be a competent witness in probate proceedings although he has not renounced his appointment; following Matter of Wilson, 103 N. Y., 374; 3 St. Rep., 613, which originated in this court.

This testimony is also objected to because it discloses communiactions made by the deceased to the witness, who was his attorney in the course of professional employment. Code Civ. Pro., § 835. In the Matter of Coleman, 111 N. Y., 220; 19 St. Rep., 501, it was held that the testator waived, as he might do under § 836, the pledge of secrecy imposed by this statute at the time he requested his lawyer to become a witness to the will. The legislature however afterwards in 1891, by an amendment to § 836, provided that the waiver must be made on the trial or examination. This will was executed January 29, 1892, and the testator died February 21, 1892. The proceedings for the probate of the will were commenced April 14,1892, and the witness Thornton was examined therein May 26, 1892. The legislature by another amendment to § 836, which took effect May 12, 1892, provided that “ nothing herein contained shall be construed to disqualify an attorney on the probate of a will heretofore executed * * * from becoming a witness as to its preparation and execution in case such attorney is one of the subscribing witnesses.” So that the admission of the testimony of this witness was by legislative sanction : and also properly, independently of the statute for I think the statute was declaratory of the law as it then stood.

I am not aware that it had been so declared in the higher courts, but in this court it has been held, since the amendment of 1891, that the testator, by asking his attorney to become a witness to his will, not only waived the pledge of secrecy imposed by the statute, but thereby removed and dissolved the confidential relation of attorney and client existing between them so far as the execution of the will was concerned. This view of the law is a fair conclusion to be drawn from the argument of the court in the Matter of Coleman, supra, notwithstanding the statement there made that, except for the waiving having been made, the testimony would not have been admissible. See, also, Rousseau v. Bleau, 131 N. Y., 177, 183; 42 St. Rep., 871.

If this is a correct view of the law, then it is not important whether the amendment of 1892 is unconstitutional as urged, on behalf of the contestants, because of interfering with vested rights. However, I am of the opinion that this amendment is not open to this objection. This doctrine does not apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights. 1 Kent Com., 455; Pot. on Stat., 167. The right, if any, of the contestants to object to the testimony under consideration depends upon a statute, and such right was lost by the passage of the amendment, which amounted to a repeal of statute under which they claim the right. Miller’s Case, 1 W. Bl., 451; Rex v. Justices of the Peace for the City of London, 3 Burr., 1456; 12 Moore, 357; Maggs v. Hunt, 4 Bing., 212.

Will admitted to probate.


author: Giegerich, J.

text:
    Emil Mattes, Pl'ff, v. John G. Panse et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed March 26, 1892.)

    Costs—Case removed from district court.
    In. an action to recover damages for negligence, removed from a district court to the common pleas, in which plaintiff recovers a verdict less than fifty dollars, defendant is entitled to full costs.
    Action by Emil Mattes against John G% Panse and another for personal injuries through defendants’ negligence. Application removed to the New York court of common pleas, in which judgment was rendered for plaintiff for a sum less than fifty dollars, upon which defendants’ costs were taxed. Plaintiff applies for a retaxation.

      John Fennel, for pl’ff; B. Lewinson, for def’ts.
   Giegerich, J.

—The provisions of the Code of Civil Procedure respecting costs (chap. 21, titles first, second and third), apply to actions tried in one of the courts specified in subdivision 4 of § 3347, namely ,the supreme court, a superior city court, the marine c'ourt of the city of New York, or a county court, Code Civil Procedure, § 3347, subdiv. 13, and are not limited to actions commenced in one of such courts, and triable therein. Combs v. Combs, 25 Hun, 279; reversing 1 Civ. Pro. Rep., 298; 62 How., 304. It follows that the costs of this action, which was originally brought in a district court of this city to recover damages for a personal injury, and removed to this court, must be awarded and taxed pursuant to the above cited provisions of the Code. The cases cited by the learned counsel for the plaintiff, namely, Druckenmiller v. Shoninger, 15 Daly, 477; 29 St. Rep., 142; Latteman v. Fere, 11 Civ. Pro. Rep., 217; Salter v. Parkhurst, 2 Daly, 240, have no application, as they merely relate to the status óf an action commenced in a district court after its removal to this court. The plaintiff having recovered less than fifty dollars, the defendant is entitled to costs. Kaliski v. Pelham Park R. R. Co., 20 Civ. Pro., 315; Daly, C. J.: Ruger v. Fahys Watch Case Co., id., 204; 37 St. Rep., 400.

The application of the plaintiff for a retaxation of the costs must therefore be denied.


author: Davy, J.

text:
    Crittendon C. H. Anderson, Pl’ff, v. The Dundee State Bank, Def't.

      (Supreme Court, Special Term, Yates County,

      Filed April, 1892.)

    1. Bills and notes — Signature oe payee must be shown to be genuine.
    In an action by the holder of a bill or note payable to order, the holder must prove the signature of the payee to be genuine.
    Same—Fictitious person.
    In order to dispense with such proof on the ground that the payee is a-fictitious person, the plaintiff must show that the maker knew the payee was a fictitious person when he made the bill or note, and that he endorsed the name of such fictitious person and transferred the note to a bona fide holder for value; or, if the payee be a real person, he must show that the-maker forged the name of such payee and with such forged endorsement transferred the note to a bona fide holder for value.
    Motion for new trial, after judgment for defendant.

      W. T. Morris, and John Gillette, for pl’ff; Briggs & Sunderlin, and Mr. Leary, for def’t.
   Davy, J.

—This action is brought to recover the sum of three hundred dollars upon a bill of exchange issued by the defendant upon the Importers & Traders’ National Bank of New York city,, payable to the order of John C. Peck. The draft was obtained by fraud and without consideration. The cause was tried before a jury and resulted in a verdict for the defendant by direction of the court. The plaintiff now moves for a new trial upon the minutes. It appears from the evidence taken upon the trial, that on the 9th day of February, 1885, a man called at the defendant’s, banking house, in the village of Dundee, and requested the cashier of said bank to cash a check drawn on the Geneva National Bank of New York for nine hundred and sixty-five dollars, which purported to have been made and signed by Ben. F. Seed, and payable to the order of Jones & Ayers, bearing date February 7, 1885. Upon the back of the check were the names Jones & Ayers and John C. Peck. The man who presented the check stated to the cashier that his name was John C. Peck, and that he desired from the proceeds of the check a draft on New York for three hundred dollars, payable to the order of John C. Peck, and the balance of the check he desired in currency. The cashier of the bank, who supposed he was familiar with the firm signature of Jones & Ayers, and believing the endorsement on the check to be genuine, and knowing the firm to be good, cashed the check by giving to the applicant the draft in question and six hundred and sixty-five ($665) dollars in currency. The check proved to be a forgery, and was utterly worthless. The fact that the draft was obtained by fraud was conceded, or rather not disputed by the plaintiff, upon the trial. The principal questions to be considered, therefore, are: does the evidence show that the plaintiff obtained a good title to the draft, and did he obtain it in the usual course of business and for a valuable consideration without notice of the fraudulent circumstances by which it was obtained ? If he did, he is entitled to recover the amount of the draft. A holder of negotiable paper, who takes it before maturity for a valuable consideration, in the usual course of business, without knowledge of facts which impeach its validity as between antecedent parties, is deemed a bona fide holder. If the plaintiff, however, before he purchased the draft, knew, or as an ordinary prudent man had reason to believe from circumstances brought to his knowledge, that the defendant had, or ■claimed to have, a defense to said draft, then the plaintiff is not an innocent holder. When the defendant proved upon the trial that the draft was procured by fraud and without consideration, it then devolved upon the plaintiff to prove that he had a good title to the draft, and that he took it in the usual course of business for'a valuable consideration and without knowledge of any •of the facts which impeached its validity. Canajoharie National Bank v. Diefendorf, 123 N. Y., 201; 33 St. Rep., 389.

If all of these points had been disputed upon the trial, then the case, no doubt, „ should have been submitted to the jury. There is one material point, however, which was not denied or disputed by the plaintiff, and which, in my judgment, is fatal to his right to recover. Mr. David Hoyt, the cashier of the Monroe County Savings Bank of Eochester, who was called by the plaintiff as an expert witness, testified that the signature of John C. Peck, upon the back of the forged check and the draft, were in the handwriting of the same person. Upon the cross-examination he was asked the question whether the signature James Bell, upon the draft, was written by the same person that wrote the name of John C. Peck upon the draft, and he answered that it was. This fact was not disputed or denied by the plaintiff. There is no evidence in the case that James Beilis the same person who obtained the draft from the defendant, and represented to the cashier of the bank that his name was John C. Peck. There is no evidence in the case that the man who claimed to be John C. Peck and who obtained the draft from the defendant, ever endorsed the name John C. Peck to the forged check or the draft. But it does appear from the undisputed evidence in the ease that the name of John C. Peck upon the draft was forged by James Bell. The plaintiff’s cashier testified that James Bell was introduced to him by a citizen of Carlonville, and that he saw Bell sign his name upon the draft; that he did not know who John 0. Peck was and did not know his signature. It is a rule of law well settled that to give title to the holder of a negotiable instrument or bill of exchange payable to the order of a person named therein, it must have the genuine endorsement of the payee upon it. In an action by the holder against the maker of a bill or note payable to order, the holder must prove the signature of the payee to be genuine.

Bacon, in laying down the rule, says the money is to be paid to him in whose favor the bill is drawn, or the endorser in case it be endorsed over, in which case it seems the drawer and the drawee must take notice at their peril. 6 Abridgt, 788. Again be says : “ A transfer by endorsement can only be made by him who has a right to make it, and that is the payee.’’

When the cashier of the Dundee State Bank signed and delivered the draft in question to the man who said his name was John C. Peck, it undertook in the event of its dishonor to pay that sum to John 0. Peck or his endorsees. An equally familiar rule of mercantile law is, any holder of that bill must show the genuine endorsement of John C. Peck thereon before he can recover. The endorsement of the payee must be shown to be genuine, because without that it cannot appear that the payee made the order, upon the existence of which depends the title of the holder to the draft. The rule is thoroughly established that a forged endorsement does not pass a title to commercial paper negotiable only by endorsement, and payment by the drawer or ■drawee of a forged draft, although purchased in good faith, is no payment at all as to the true owner. Graves v. American Exchange Bank, 17 N. Y., 205; Citizens' National Bank of Davenport, Iowa, v. Importers & Traders' Bank, 119 id., 200; 29 St. Rep., 1.

It was the plaintiff’s duty to see to it that the payee had endorsed the draft, and if he neglécted to do so, he took the draft at his own risk. Corn Exchange Bank v. Nassau Bank, 91 N. Y., 74, 81. In other words, the plaintiff, when he purchased the draft of James Bdll, was bound to ascertain that the signature of John C. Peck thereon was that of the genuine payee, and it is no excuse that he purchased the draft in good faith! and for value upon the endorsement of a person bearing the same name as the payee. The rule that the payee must first endorse a note is founded upon the fact that he alone can transfer it and give title to the purchaser. It is contended, however, by the learned counsel for the plaintiff, that John C. Peck, the payee, was a fictitious person, and therefore his endorsement was unnecessary to pass the legal title to the plaintiff.

In an action brought by the holder on a draft against the maker where it is payable to order, in order to dispense with the necessity of proving the endorsement of the payee to be genuine on the ground that the payee is a fictitious person, the plaintiff must show:

First. That he knew the payee was a fictitious person at the time he made the draft.

Second. That he endorsed the name of a fictitious payee upon the draft and then transferred it to a bona fide holder for value.

Or, if the payee be a real person, the plaintiff must show:

First. That the endorsement of the payee was forged by the maker.

Second. That the maker negotiated the draft with such forged endorsement upon it to a bona fide holder for value.

The law in such cases estops the maker of the draft who has himself made it payable to a fictitious person and has endorsed the name of his fiction upon it, or who has made it payable to a real person and forged the name of the payee upon it and then transferred it over to a bona fide holder for value, from denying his liability on such a draft; and it has been held that it may be sued and declared upon by a bona fide holder for value as payable to bearer. Mayor v. Bank of England, L. R., 21 Q. B. D., 160; 1 Camp, 130; Plets v. Johnson, 3 Hill, 112; Minet v. Gibson, 3 Term, 482; Shipman et al. v. Bank of the State of New York, 126 N. Y., 330; 37 St. Rep., 376.

It will be seen, therefore, from a close examination of these cases that bills of exchange and promissory notes endorsed by a fictitious payee can only be enforced against the maker when he puts them in circulation with knowledge that the name of the payee is a fictitious person. It is the knowledge and intent of the payee when he negotiates the paper that determines its validity and his liability. The Revised Statutes of this state provide that when ribtes or bills of exchange are made payable to the order of the maker thereof or to the order of a fictitious person, if negotiated by the maker, they have the same effect and are of the same validity as against the maker and all persons having knowledge of the facts as if payable to the bearer. 1 R. S., 768, § 5; Irving Nat. Bank v. Alley, 79 N. Y., 536; Maniort v. Roberts, 4 E. D. Smith, 83.

It is quite clear that under the statute above referred to notes- or bills payable to the order of a fictitious person, in order to be treated as notes and bills made payable to bearer, must b6 negotiated by the maker with knowledge of those facts.

Judge O’Brien in the case of Shipman et al. v. Bank of the State of New York, supra, in construing the above statute says, that paper made payable to the order of a fictitious person and negotiated by the maker has the same validity as against the maker and all persons having knowledge of the facts, as if payable to bearer. He also says: “We are of the opinion that this rule applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knew that the payee was a fictitious person and actually intended to make the paper payable to a fictitious person.”

Daniel in' his work on Negotiable Instruments, vol 1, § 140, says that if a draft or note is payable to some person known at the time to exist and present to the mind of the drawer when he made the draft as the party to whose order it was to be paid, the genuine endorsement of such payee is necessary in order to entitle the holder to recover thereon.

It has been repeatedly held by the courts of this state, that the drawer of a draft is not bound by the payment made by the payee upon a forged endorsement. The payee was bound before payment to ascertain the genuineness of the endorsement. Welsh v. German American Bank, 73 N. Y., 424; Vagliano v. Bank of England, L. R., 22 Q. B. D., 103.

The endorsement by James Bell of the name of John 0. Peck upon the draft with intent to deceive the plaintiff and to put the draft in circulation constituted the crime of forgery, even though John C. Peck were, a fictitious payee.

The rules of commercial law governing negotiable paper may not always work complete justice, but a regard for the confidence and security which ■ should govern in mercantile transactions o£ this kind demands a rigid application when a proper case arises.

The Dundee State Bank executed and delivered the bill o£ ■exchange in question to John C. Peck, and made it payable to his order. It did not issue or intend to issue the draft to a fictitious person or to a fictitious John C. Peck; and to hold that the payee of the draft, John C. Peck, was a fictitious person and that the defendant is estopped from disputing that fact and must pay the draft because it happens to fall into the hands of a bona fide purchaser for value, is to go beyond any authority I have been able to discover or any which I believe to exist. Peck was the applicant for the draft, and he was the person to whose order it was made payable. The cashier of the bank recognized him as such person, and whatever may have been the reserved, concealed .and fraudulent intention of the applicant who claimed to be John

0. Peck are wholly immaterial. There can be no doubt that the cashier of the Dundee State Bank had no other idea than that the bill would be paid to the order of the John C. Peck to whom he delivered the draft. To' hold under these circumstances that John C. Peck was a fictitious person, and that the draft may be negotiated and recovered upon as a note or bill payable to bearer, would be a most dangerous rule to adopt and one tending to destroy the chief value of bills of exchange and negotiable paper. As an example, suppose the person ■ representing himself to the Dundee State Bank as John C. Peck was an honest man and that was his genuine name, and that he applied in good faith for a draft payble to his order with a view of purchasing groceries in the city of Hew York; suppose further that he delivered it to James Bell, who was his confidential clerk or cashier, for safe keeping until such time as he might desire to use it, and that James Bell should forge the name of John C. Peck and pass it to the plaintiff ; would the léarned counsel for the plaintiff contend that the drawee or drawer of the draft could be compelled to pay it until it had received the genuine endorsement of the payee ? Certainly not.

The presumption of law is that the draft was drawn with the intent of vesting the title in John C. Peck, and in him alone; consequently it is only through him that a title could be derived and only by title given by him and evidenced by his endorsement that a valid payment could be made, it appearing from the evidence in this case that the name of John C. Peck upon the draft was forged by James Bell. The loss, therefore, resulting from this fraud the plaintiff must sustain and against its perpetrator must seek relie!

The motion for a new trial is denied, with ten dollars costs to the defendant


author: Dwight, P. J.

text:
    The People ex rel. George D. Emerson, Resp’t, v. The Board of Aldermen of the City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed August, 1892.)

    1. Elections—Inspectors—Laws 1891, chap. 105—Buffalo.
    The provisions of the revised charter of Buffalo, chap. 105, Laws 189Í, relating to the inspectors of election in that city, are not repealed, impaired or affected by Laws 1891, chap. 7, or Laws 1892, chap. 680, but. still remain in full force.
    3. Same—Mandamus.
    Such provisions having been in force at the time of the election and1 canvass of votes in 1891, they are capable of enforcement by mandamus-against the board of aldermen as the successor of the common council which failed to comply therewith, by declaring relator elected as one of such inspectors.
    -Appeal by the defendant „from an order of the Erie special term, July 22, 1892, directing the issuance of a peremptory writ of mandamus, commanding the defendant to complete the canvass of the return of votes cast' at the annual election in November, 1891, for inspectors of election in the sixth district of the-twenty-first ward of the city of Buffalo, so as to determine and certify who was elected as the third of such inspectors of election ‘r and also to appoint, as two additional inspectors of election of such district, the two persons who received the next highest number of votes after the three who were elected as such.

      W. F. Mackey, for app’lt; F. C. Laughlin and A. Moot, for resp’t.
   Dwight, P. J.

—The questions presented to the special term by the application for the writ of mandamus in this case were (1) Whether the provisions of the revised charter of the city of Buffalo (chap. 105 of the Laws of 1891), relating to the inspectors of election in that city, had the force of law ; and (2) whether they were capable of enforcement by the means adopted in this proceeding. We think both of these questions were correctly answered in the affirmative, and that the order was properly made-from which this appeal was taken.

The facts involved were not in dispute; the questions presented related mainly to the effect to be given to several statutory enactments.

Section 866 of the statute above cited provided for five inspectors of election in each district, three to be elected by the electors-of the district, and two to be appointed by “ the board of aider-men immediately upon canvassing the votesand a further provision of the same section was to the effect that no ballot should be counted as a vote for inspectors which bore more than three-names for that office. This act became a law March 27th, 1891,. and by its last section (508) all of its provisions relating to elections to office were to take effect immediately. Accordingly, at. the annual election in November, 1891, the ballots cast by a majority of nearly three to one of the electors of district No. 6 of ward 21, contained the names of three persons for the office of inspectors of election, while those which received the next highest number of votes contained only two names for that office. These-votes were returned by the inspectors of the district to the canvassing board of the city, which ‘at that time, under the existing charter, was. known as the common council, though composed wholly of persons elected as aldermen of the several wards. That board refused to canvass the votes returned for more than two-candidates for inspectors of election on each ticket, and, accordingly, ceritiled the election of those two candidates, only, who received the highest number of votes. The relator, George D. Emerson, was the third candidate on the majority ticket, having himself received 149 votes to 60 votes for the highest candidate on the other ticket.

On the 1st day of January, 1892, all the remaining provisions of the revised charter took effect, and the “common council,” above mentioned, was succeeded as a canvassing board by the “ board of aldermen,” consisting, in part, of the aldermen who had composed the former board, and in part of aldermen elected to fill vacancies or to represent wards newly created. It was to the new board of aldermen that the relator presented his petition, praying that such board complete the canvass of returns which its predecessor had refused to complete, and certify his election as one of the inspectors of the district; also, that it appoint the two additional inspectors as required by the statute. The board of aldermen, by a tie vote, refused to grant the prayer of the petition, and on his application to the court, at special term, the order was obtained from which this appeal was taken.

In the absence of other facts, those embraced in the foregoing statement would, no doubt, entitle the relator to the relief demanded. Mandamus will lie to compel the performance of an official duty clearly prescribed by law on the part of a public officer or board. The case of People ex rel. Smith v. Schiellein et al., 95 N. Y., 125, is abundant authority for the application of this rule to the case of a board of canvassers, and the case of the People v. The Board of Supervisors of Chenango County, 8 N. Y., 330, for the proposition that while the duty continues it may be enforced against the successors in office of those who have originally neglected its performance. In the former of those cases, it was said by the court: “It would be a reproach to the law to hold that an election to office by the people could be defeated by the neglect or refusal of the canvassers to perform the official duty of canvassing votes cast at an election; ” and further: “ It is one of the peculiar functions of the writ of mandamus to meet and remedy the evils which would result from such a neglect of official duty.”

In this case the board of aldermen created by the revised charter of 1891 is made in all respects the successor, as a board of canvassers, of the common council, a board composed of aider-men, existing under the former charter, and the mere change in name of the collective body can have no effect to relieve the one from the duty enjoined upon the other. By the revised charter the duty of canvassing the returns of votes cast for three inspectors of election in each of the districts into which the twenty-five wards, created thereby, were to be divided, and the appointment of two additional inspectors in each, was laid upon the board of aldermen, eo nomine. That this was a duty first to be performed in respect to the election of 1891, admits of no doubt under the provision, before mentioned, that all such parts of the statute as related to elections to office should take effect immediately; and, since the new board of aldermen were not constituted until the 1st day of January, 1892, it must have been the intention of the statute that that duty should be performed in 1891 by the board of canvassers as it then existed, composed of aldermen, but officially denominated the common council.

Attention is called in the argument of counsel for the appellant to a provision of § 508 (supra), to the effect that the division of the city into twenty-five wards, instead of thirteen as formerly, should not take effect until the 1st day of January, 1892, except .so far as was necessary to render the election of ward officers in 1891 regular and legal. But this must clearly be taken subject to the previous general exception of all provisions of the act relating to elections to office ; and so it was evidently construed. Section 32 of the act provides that “ The common council shall, on or before the 1st day of September in each year, divide the wards into convenient election districts of not more than 300 electors, and on or before the 1st Monday of October of each year-designate the place of holding the polls in each district and fill vacancies in the office of inspectors of election."

The case shows that this was done in the year 1891, and that the election for all offices, in November of that year, was held accordingly in the several election districts into which the twenty-five wards had been thus divided. The meaning of the limitation referred to was evidently to preserve the existing ward lines for all the purposes of administration until the revised charter should take effect as a whole.

So much of our inquiry has been directed merely to the question secondly above propounded, viz.: whether, if the provision for five inspectors of election in each of ■ the election districts of the city was in force at the time of the election and canvass of votes in 1891, and also at the time of the application for the writ of mandamus in July, 1892, it was capable of enforcement by means of that writ.

It remains to consider the grounds upon which it is argued that that provision was not so in force.

The facts which seem to be relied upon as the basis of that contention are briefly as follows: For many years before the ballot reform act of 1890, chap. 262 of the laws of that year, the general election laws of the state provided for three inspectors of election in each election district, whether of cities or towns, two to be elected by ballot of the electors, no one of whom should vote for more than two, and the third to be appointed by the presiding officers of each election from the two next highest ■candidates.

By an act for the revision of the charter of Buffalo, passed in 1870, chap. 519 of the laws of that year, practically the same provision was enacted for that city.

The ballot reform act of 1890 (supra) provided for five inspectors in each district, three to be elected by ballot of the electors, no one of whom should vote for more than three, and two to be appointed by the presiding officers of the election, and to be selected from the three next highest candidates.

By chapter 7 of the Laws of 1891, passed February 7th of that year, a return was had by general law to the systern of three inspectors as it existed previous to the act of 1890. This was followed in the same year by the special act for the city of Buffalo., the provisions of which have been heretofore quoted and which became a law March 27, 1891.

By § 375 of that act it is provided that elections held thereunder “shall be governed by the general election laws of the state, when they are not inconsistent with the provisions of this act.”

Finally, by chapter 680 of the laws of the present year, the legislature has made general provision for the appointment of all inspectors of election, in cities, by the common council of each city; but this particular provision is by § 11 of the act made subject to the saving clause, “ unless otherwise provided by law,” and the repealing section makes ho mention of any provision of the special act for the city of Buffalo.

We find in this statement of the course and present status of legislation on the subject in question nothing which militates against the legal force and validity of the provision of the revised charter of Buffalo relating to the number and mode of designation of inspectors of election. It was enacted subsequently to the general law of 1891, and was therefore not affected by its provisions, and it was saved by the express terms of the act of. 1892.

It is true that the discrepancy between the special statute for Buffalo and the successive general enactments applicable to the rest of the state may well excite surprise and'give rise to inquiry as to its cause; but such an inquiry would be merely curious and without practical result. If conjecture were to be indulged, ife might easily be surmised that the provision in question in the charter of Buffalo was framed to conform to the general act of 1890 which was in force when that charter was originally drafted, and that in the haste and inattention which sometimes accompany legislative action the fact was overlooked, when the special statute was enacted, that the general statute had only shortly before been amended in the particular in question ; and that, from a similar cause, the existence of the special provision for the city of Buffalo was overlooked when the saving clause above mentioned was inserted in the general act of 1892. But such conjecture furnishes no ground for judicial action; the legislature must be presumed to have understood and intended the plain and necessary effect of the language employed in its several enactments; and the power to remedy hasty or ill considered legislation, by repeal or amendment, rests with the legislature and not with the courts.

Counsel for the appellant urge upon our attention an apparent incompatibility between the provision in question in the charter of Buffalo and the provision of the act of 1892 in respect to the appointment of the poll and ballot clerks' who constitute an important part of the machinery of elections under the latter statute. The provision referred to is found in § 12 of the last mentioned statute, which after prescribing the number and qualification of clerks to be appointed, provides that “ At the first meeting of inspectors of election in every district in which the law provides for the election of inspectors, the inspectors elected shall appoint one of the poll clerks and one of the ballot clerks, and the inspector appointed shall appoint the other poll clerk and ballot clerk.” Whereas the provision of the charter of Buffalo is for the election of three and the appointment of two inspectors; so that, as it is said, the language of the general law, “ and the inspector appointed shall appoint,” etc., is inappropriate to the case of the city of Buffalo.

It is clear that as a mere argument ab inconveniently this suggestion, even if the incompatibility were absolute, would not be conclusive upon any question arising1 on this appeal; but we do not think the case in this respect presents any practical difficulty. Undoubtedly, in order to give effect to this provision of the general law in its application to the exceptional case of the city of Buffalo, the word “ inspector ” as used therein may be read “ inspectors.” The actual use of the word in the singular, without adding the words “ or inspectors,” only indicates the probability that the existence of the special provision for inspectors in the charter of Buffalo was overlooked in the framing and enactment of the provision for clerks in the act of 1892; but no such mere omission of the plural form of the word employed can have the effect of defeating the evident intention of the legislature to provide for the appointment of poll and ballot clerks in all the election districts 'of the state.

Upon the whole we find nothing in legislation subsequent to the enactment of the revised charter of the city of Buffalo which has the effect to repeal, annul or impair the legal force and validity of the special provisions of that statute in respect to the number and mode of selection of inspectors of election in each of the election districts of that city; and that provision being in force the relator was duly elected to the office in question, and was , entitled to a canvass of his vote and a certificate of his election.

The order for a peremptory mandamus should be affirmed.

Order appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.